The ECHR cases of Asadulayeva and Others – Magomadova and Others – Zabiyeva and Others v. Russia (application no. 15569/06, 33933/05 and 35052/04).

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EUROPEAN COURT OF HUMAN RIGHTS

664

17.09.2009

Press release issued by the Registrar

Three Chamber judgments1 in respect of Russia

ASADULAYEVA AND OTHERS v. RUSSIA (No. 15569/06)

MAGOMADOVA AND OTHERS v. RUSSIA (No. 33933/05)

ZABIYEVA AND OTHERS v. RUSSIA (No. 35052/04)

DISAPPEARANCES AND A KILLING IN CHECHNYA

Violations of Articles 2, 3, 5 and 13

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicants sums ranging between 2,622 euros (EUR) and EUR 24,000 in respect of pecuniary damage, between EUR 2,000 and EUR 35,000 in respect of non-pecuniary damage, and between EUR 4,500 and EUR 5,500 for costs and expenses.

Principal facts

The applicants in the first case are three Russian nationals who live in Groznenskiy District (Chechen Republic). The first and third applicants are the sisters of Bekman Adiyevich Asadulayev, born in 1979, and the second applicant is his wife. He has not been seen since the early afternoon of 14 January 2004 when he was detained on leaving a Ministry of the Interior building by three or four armed men in unusual grey uniforms, handcuffed and driven away.

The applicants in the second case are five Russian nationals who live in Grozny (Chechen Republic). The first applicant is the mother of Ruslan Magomadov, born in 1966. The second applicant is his wife, the third and fourth applicants are his daughter and son, and the fifth applicant is his sister. He has not been seen since the early hours of 9 February 2003 when he was abducted from the family home by a group of armed men in camouflage uniforms, and driven away in an armoured personnel carrier.

The applicants in the third case are four Russian nationals who live in Galashki (Republic of Ingushetia). They are the mother, wife and sons of Umar Zabiyev, born in 1972, who disappeared from the scene of an accident caused when his lorry came under gunfire, and during which his mother was seriously wounded. His dead body bearing gunshot wounds and bruises was found the next day about two kilometres from the scene of the incident.

The Government did not challenge most of the account given by the applicants in the Magomadova and others case. In respect of the Asadulayeva and others case they submitted that unidentified armed men had abducted Bekman from the secure grounds of the Ministry of Interior. As regards the Zabiyeva and others case, the Government advanced that unidentified persons hiding in a forest had shot at the applicants in June 2003 and that Umar Zabiyev had been found dead, buried not far from the scene of the shooting incident.

Complaints and procedure

The first two cases concerned the applicants’ allegations that a close relative disappeared in Chechnya after having been detained by Russian servicemen; the third case that a close relative had been killed by Russian servicemen. All the applicants further alleged that the domestic authorities failed to carry out an effective investigation. They relied in particular on Articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security) and 13 (right to an effective remedy).

Decision of the Court

In the case of Asadulayeva and others the Court observed that it was common ground between the parties that on 14 January 2004 Bekman Asadulayev had been summoned to the Ministry of Interior (MVD) and subsequently abducted from its secure grounds. As access to the MVD grounds had only been possible through a secured checkpoint, and that there had been no security breach on the MVD grounds, the Court concluded that the abduction had taken place on premises over which the State authorities had exercised full control at the material time. Furthermore, the District Court had concluded that the applicants’ relative had been taken away with the knowledge of the MVD officials. In addition, having drawn inferences from the authorities’ refusal to submit the file to it, the Court concluded that the applicants’ relative had been abducted by State agents during an unacknowledged security operation. Finally, the Government had failed to provide any explanation for Bekman’s disappearance and the official investigation into his kidnapping, having dragged on for more than five years, had produced no known results. Consequently Court found it established that Bekman Asadulayev had to be presumed dead. In the absence of any plausible explanation on the part of the Government about the circumstances of his death, the Court held that there had been a violation of Article 2.

In the case of Magomadova and others, the Court having examined the documents submitted by the parties, and having drawn inferences from the Government’s failure to submit to it the remaining documents in their exclusive possession or to provide another plausible explanation for the events in question, the Court found that Ruslan Magomadov had been arrested by State servicemen during an unacknowledged security operation. In view of his absence or of any news of him for several years, the Court concluded that he had to be presumed dead. Given the lack of any justification by the Government for his absence, the Court found that his death could be attributed to the State and that there had therefore been a violation of Article 2.

In the case of Zabiyeva and others, the Court considered that the applicants had presented a coherent and convincing picture of the events which had been supported by the witnesses and the domestic investigation. Having drawn inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide another plausible explanation of the events in question, the Court found it established that the first applicant had been wounded and Umar Zabiyev killed by State servicemen. Since the authorities had failed to account for the killing, the Court held that there had been a violation of Article 2 in respect of Umar Zabiyev.

The Court further held in all three cases that Article 2 had been breached on account of the failure of the competent authorities to conduct en effective investigation into the circumstances of the disappearances or killing of the applicants’ relatives.

In all three cases the Court found a violation of Article 3: in the Asadulayeva and others and Magomadova and others the violation of Article 3 related to the psychological suffering of the applicants; in the Zabiyeva and others three violation of this Article were found, on account of the ill-treatment of Umar and Tamara Zabiyevi and of the lack of an effective investigation into the allegations of such ill-treatment.

The Court further found in the cases Asadulayeva and others, and Magomadova and others, that the applicants’ relatives had been held in unacknowledged detention without any of the safeguards contained in Article 5, which had constituted a particularly grave violation of the right to liberty and security enshrined in this Article.

Finally, in all three cases the Court held that there had been a violation of Article 13 of the Convention taken in conjunction with Article 2. In the Zabiyeva and others case, there had been a violation of Article 13 also in respect of the violation of Article 3.

CASE OF ASADULAYEVA AND OTHERS v. RUSSIA

(Application no. 15569/06)

JUDGMENT

STRASBOURG

17 September 2009

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Asadulayeva and Others v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 27 August 2009,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 15569/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Russian nationals listed in paragraph 5 below (“the applicants”), on 7 April 2006.

2.  The applicants were represented by lawyers of the Stichting Russian Justice Initiative (SRJI), an NGO based in the Netherlands with a representative office in Moscow, Russia. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3.  On 28 May 2005 the President of the First Section decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

4.  The Government objected to the joint examination of the admissibility and merits of the application and the application of Rule 41 of the Rules of Court. Having examined the Government’s objection, the Court dismissed it.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicants are:

1) Ms Lyaylya Adiyevna Asadulayeva (also spelled as Leyla/Layla Adiyevna Asadulayevna), born in 1967;

2) Ms Aset Eslyudyevna Saitova, born in 1981, and

3) Ms Zinaida Adiyevna (also spelled as Adyevna) Asadulayeva, born in 1976.

6.  The applicants live in Alkhan-Kala, in the Groznenskiy District of the Chechen Republic.

7.  The first and third applicants are sisters of Mr Bekman Adiyevich Asadulayev, born in 1979. The second applicant is his wife. The couple have two children, born in 2003 and 2004.

A.  Abduction of Bekman Asadulayev

1.  The applicants’ account

8.  At the material time Bekman Asadulayev lived in the village of Kerla-Yurt together with the second applicant and their child. He was employed as a police officer of the Pobedinskoye police station of the Groznenskiy district office of the Interior (ROVD).

9.  On 14 January 2004 Mr S., head of the ROVD, summoned Bekman Asadulayev to the ROVD and instructed him to go to the Ministry of the Interior of the Chechen Republic (MVD) to give an explanation to Mr G., an official of the MVD human resources department, in connection with his unauthorised absence from work.

10.  Bekman Asadulayev, Mr Sh., the then acting head of the Pobedinskoye police station, and a Mr A. drove to the MVD.

11.  At about noon on 14 January 2004 they arrived at the MVD. The MVD grounds, including the MVD building, were surrounded by a high fence and could be entered only through a checkpoint. At that checkpoint visitors had either to apply for a special temporary pass or show their identity cards. Every visitor’s identity information was registered at the checkpoint in special visitors’ logbooks. Armed security guards were stationed at the secure gate leading to the MVD grounds. The external access road to the MVD grounds had two further checkpoints. Each of them was guarded by security personnel and kept its own visitors’ logbook.

12.  Upon arrival at the MVD secure gate Bekman Asadulayev and Mr Sh. got out of the car and went into the MVD building. Mr A. stayed in the vehicle. Bekman Asadulayev and Mr Sh. were received by Mr G. Bekman Asadulayev made a written statement and handed it over to Mr G. At that moment three or four armed men in military uniforms walked into the room. Their uniforms were unusual in that they were grey and had many pockets. While leaving the building Bekman Asadulayev and Mr Sh. were stopped by the armed men who had apparently followed them. The men asked for Bekman Asadulayev’s and Mr Sh.’s identity cards. After checking the documents, they returned Mr Sh.’s identity card to him but did not give Bekman Asadulayev his identity card back. They told Bekman Asadulayev that they would take him with them “for a check”, handcuffed him and put him in a dark blue VAZ-21099 car which was parked at the entrance of the MVD building. The car, which did not have licence plates, was driven to the checkpoint at the gate. The officers at the checkpoint did not stop the car; the driver merely honked and the car was allowed to pass through without being checked. Having left the MVD grounds, the car was driven to an unknown destination.

13.  When Mr Sh. left the MVD grounds and met Mr A., he told the latter about the incident and they decided to go to Mr S., head of the ROVD, to alert him to the abduction of Bekman Asadulayev. Meanwhile, Mr S. had arrived at the MVD entrance gate in his car. Having heard their account, Mr S. reassured them that there were no reasons to worry and that on the following day they would “have information about everything”. Mr S. took Bekman Asadulayev’s service submachine gun from the car in which the three men had arrived at the MVD and left.

14.  In the days that followed Mr S. tried to find out who had apprehended Bekman Asadulayev, how the abductors had managed to enter the premises of the MVD and where they could have taken Bekman Asadulayev. However, his attempts failed to produce any results.

15.  On an unspecified date in 2004 Mr Sh. was killed.

16.  The description of the above events is based on complaints by the first applicant to various State bodies dated 19 February 2004, a written statement by the first applicant to her representative made on 8 December 2004, an undated written statement by Mr A. and three hand-drawn maps of the grounds of the MVD.

2.  The Government’s account

17.  The Government submitted, with reference to the information obtained in the course of the investigation in criminal case no. 30012 (see below), that on 14 January 2004 unidentified armed men in camouflage uniforms had abducted Bekman Asadulayev from the secure grounds of the MVD.

B.  Official investigation into the abduction of Bekman Asadulayev

1.  The applicants’ account

18.  On 17 January 2004 the third applicant complained about the abduction of Bekman Asadulayev to the prosecutor’s office of the Leninskiy district of Grozny (the district prosecutor’s office). She described the circumstances of her brother’s abduction from the MVD grounds and requested assistance in establishing his whereabouts.

19.  On 4 February 2004 the district prosecutor’s office instituted an investigation into the abduction of Bekman Asadulayev under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given number 30012. It does not appear that the applicants were notified of that decision.

20.  On 18 February 2004 the district prosecutor’s office summoned the third applicant to their office on an unspecified date in connection with her complaint of 17 January 2004. It is unclear whether the meeting took place and if so, whether any investigative measures were carried out with the third applicant’s participation.

21.  On 19 February 2004 the first applicant complained about the disappearance of Bekman Asadulayev to a number of State authorities, including the prosecutor of the Chechen Republic, the Minister of the Interior of the Chechen Republic and the Prosecutor General of the Russian Federation. In her letters she described the circumstances of Bekman Asadulayev’s abduction from the grounds of the MVD. She submitted, in particular, that on 14 January 2004 Bekman Asadulayev had been summoned to the MVD to meet Mr D., the deputy Minister of the Interior of the Chechen Republic. Mr G. had obtained Bekman Asadulayev’s statement and while the latter had been leaving, unidentified men had apprehended him and had taken him away in a dark blue VAZ vehicle. The first applicant pointed out that the abductors’ vehicle had not been stopped at the checkpoint and provided the names of the two persons who had witnessed her brother’s apprehension, Mr Sh. and Mr A.

22.  On 15 March 2004 the district prosecutor’s office granted the third applicant victim status in connection with the proceedings in case no. 30012. She was notified of the decision on the same date.

23.  On 12 May 2004 the MVD informed the first applicant that they had conducted an internal inquiry in connection with her complaint about the abduction of Bekman Asadulayev; however, it had failed to establish his whereabouts. The letter further stated that all information concerning the criminal investigation was to be obtained from the district prosecutor’s office.

24.  In a letter of 12 May 2004 the prosecutor’s office of the Chechen Republic (the republican prosecutor’s office) notified the third applicant, in reply to her query, that the district prosecutor’s office had instituted a criminal investigation into the abduction of Bekman Asadulayev and that operational and search measures aimed at establishing his whereabouts and solving the crime were under way.

25.  On 17 May 2005 the third applicant complained to the district prosecutor’s office about the lack of information concerning the progress and the results of the investigation in criminal case no. 30012. She requested the authorities to conduct an effective and thorough investigation into her brother’s abduction and to update her on the steps taken by the investigating authorities.

26.  On 15 July 2005 the third applicant submitted to the district prosecutor’s office a repeated complaint about the lack of information on the investigation in case no. 30012, reiterating the grievances she had raised in the letter of 17 May 2005 and pointing out that the district prosecutor’s office had disregarded her previous complaint.

27.  On 21 July 2005 the applicants’ representatives wrote to the district prosecutor’s office. They described in detail the circumstances of Bekman Asadulayev’s abduction and complained about the lack of information concerning the criminal investigation in case no. 30012. In particular, they requested that the applicants be updated on the progress of the investigation and that it be resumed if it had been suspended. They further enquired whether the investigating authorities had questioned the servicemen on duty at the checkpoint of the MVD at the material time; whether measures had been taken to establish the circumstances of abductors’ vehicle’s unhindered passage through the checkpoints; whether the crime scene had been inspected; and whether eyewitnesses to the abduction had been questioned. It does not appear that the applicants or their representatives received a reply to that request.

28.  On 29 December 2005 the applicants’ representatives wrote a letter along the same lines to the republican prosecutor’s office. They forwarded a copy of their letter to the district prosecutor’s office. It does not appear that their letters were ever replied to.

2.  Information submitted by the Government

(a)  Internal inquiry

29.  From the Government’s submissions it transpires that on 17 January 2004 the authorities launched an internal inquiry into the incident of 14 January 2004. The Government neither specified the authority in charge of the inquiry nor furnished any other information in that connection.

(i)  Questioning of Mr Sh.

30.  On 17 January 2004 Mr Sh. was questioned as part of the inquiry. He submitted that on 14 January 2004, at about 10 a.m., he had arrived by car at the MVD with Bekman Asadulayev and Mr A. Bekman Asadulayev had been summoned to the MVD by their human resources department. Mr Sh. and Bekman Asadulayev had entered the MVD building while Mr A. had stayed outside in the car. Mr Sh. and Bekman Asadulayev had gone to the office of Mr G., an official of the human resources department, who had instructed Bekman Asadulayev to write a statement with a view to clarifying certain personal information in connection with his recruitment. At that moment three men in camouflage uniforms armed with automatic weapons had entered the office of Mr G. Two minutes later the armed men had left.

31.  When Bekman Asadulayev had finished writing his statement, Mr G. had allowed him and Mr Sh. to leave and they had left the building. There they had seen a dark blue VAZ-21099 car with tinted windows and without licence plates. There had been four men armed with automatic weapons by the car. They had not been wearing masks. One of the armed men had asked Bekman Asadulayev and Mr Sh. who they had been visiting. Mr Sh. had replied that they had just seen Mr G. The armed man had then requested that Mr Sh. and Bekman Asadulayev produce their service certificates. Having checked them, the armed men had returned Mr Sh.’s document to him. They had told him that he was free to leave but had taken Bekman Asadulayev with them. Mr Sh. had requested the armed men to identify themselves but they had refused. They had forced Bekman Asadulayev into the back of the VAZ-21099 car, had honked to the guards who had opened the gate for them and had left the MVD grounds for an unknown destination.

32.  Mr Sh. had decided to follow the armed men but by that time he had seen Mr S., head of the ROVD, arrive at the MVD building. Mr Sh. had immediately alerted Mr S. to the abduction of Bekman Asadulayev. Mr S. had taken Bekman Asadulayev’s service submachine gun and explained to Mr Sh. that he had talked to the head of the MVD human resources department, Mr Zh., and that the “competent authorities [were] dealing with Bekman Asadulayev” because they had had “information capable of compromising him” (компрометирующий материал).

(ii)  Questioning of Mr S.

33.  On 23 January 2004 Mr S., head of the ROVD, was questioned. He submitted that in the afternoon on 13 January 2004 he had been instructed to send Bekman Asadulayev to see the deputy head of the MVD, in charge of human resources. Mr S. had summoned Bekman Asadulayev and his superior, Mr Sh., to his office on 14 January 2004, at 9 a.m. Both men had arrived at the indicated time and had surmised that the summons to the MVD human resources department could have been prompted by Bekman Asadulayev’s missing of classes in a police school. After a conversation with Mr S., Bekman Asadulayev and Mr Sh. had left for the MVD.

34.  At about 11 a.m. Mr S. had arrived at the MVD. At the building entrance he had met Mr Sh. who had informed him that unidentified armed men had taken Bekman Asadulayev away in a dark blue VAZ-21099 car without licence plates. Mr S. had not been worried, considering that it would be impossible to abduct a person from the MVD grounds without the knowledge of MVD senior officials. Mr S. had made enquiries to the heads of various MVD departments about the circumstances of the disappearance of Bekman Asadulayev but none of them had furnished any specific information. All persons questioned by him had supposed that the case had been dealt with by the security services, without however naming any particular service. Subsequently Mr S. had requested information about the incident involving Bekman Asadulayev from various bodies, including the heads of the criminal police of the Ministry of the Interior, the special police forces (OMON), operational and search Bureau no. 2 (ORB-2) and the internal security directorate of the Ministry of the Interior. However, none of those bodies had furnished any relevant information. Mr S. lastly stated that he had no information on the whereabouts of Bekman Asadulayev or his abductors.

(b)  Institution of the criminal investigation

35.  On 4 February 2004 the district prosecutor’s office launched a criminal investigation into the abduction of Bekman Asadulayev under Article 126 § 2 of the Criminal Code (aggravated kidnapping) and assigned the case number 30012.

36.  On 18 February 2004 Mr Sh. was questioned. He confirmed his statement of 17 January 2004.

37.  On 19 February 2004 Mr S., questioned as a witness, confirmed his statement made on 23 January 2004.

(i)  Requests for information

38.  On 19 February 2004 the district prosecutor’s office requested ORB-2 to inform the investigators whether they had carried out any special operations aimed at arresting Bekman Asadulayev and whether they had at their disposal any information capable of compromising him.

39.  On 1 March 2004 the investigators sought from the FSB Department in the Chechen Republic information similar to that requested from ORB-2.

40.  According to the Government, the replies of the above authorities indicated that they had not carried out any special operations with a view to arresting Bekman Asadulayev and had not had information capable of compromising him.

(ii)  Questioning of Mr Zh.

41.  On 9 March 2004 investigators of the district prosecutor’s office questioned Mr Zh., who at the time of the incident had held the post of deputy Minister of the Interior of the Chechen Republic and had been head of the MVD human resources department. Mr Zh. submitted that on 11 or 12 January 2004 he had been contacted over the phone by Mr D., the acting Minister of the Interior of the Chechen Republic. Mr D. had informed Mr Zh. that a certain Bekman Asadulayev, a police officer of the Groznenskiy ROVD, had concealed important personal information at the time of his recruitment by the police. Mr D. had instructed Mr Zh. to summon Bekman Asadulayev to the MVD and to obtain his explanation.

42.  Following the conversation, Mr Zh. had ordered his assistant, Mr G., to summon Bekman Asadulayev to the MVD and to obtain from him a written explanation concerning his personal file and, in particular, the lacking data on the relatives of his wife.

43.  On 14 January 2004 Mr Zh. had received a phone call from Mr G., notifying him that Bekman Asadulayev had arrived at the MVD. Mr Zh. had instructed Mr G. to receive Bekman Asadulayev and to obtain the information required from him. Forty to forty-five minutes later Mr G. had reported to Mr Zh. that he had obtained Bekman Asadulayev’s statement and had allowed him to leave. In the afternoon Mr Zh. had met Mr S. The latter had asked him who might have taken Bekman Asadulayev away. Mr Zh. had replied that he did not know. Four days after the abduction of Bekman Asadulayev, the latter’s relatives, worried by his absence, had gathered at the MVD checkpoint. Some eight days after the abduction Mr Zh. had been approached at the MVD checkpoint by two men and a woman who had enquired about Bekman Asadulayev. Mr Zh. had explained to them that he did not have any information about him. Lastly, Mr Zh. submitted that he had not seen Bekman Asadulayev on 14 January 2004.

(iii)  Questioning of Mr A.

44.  On 15 March 2004 Mr A. was questioned as a witness. He submitted that on 14 January 2004, between 10 and 11 a.m., he had arrived at the MVD building with Bekman Asadulayev and Mr Sh. Mr A. had stayed in the car, keeping an eye on Bekman Asadulayev’s service weapon, while the latter and Mr Sh. had entered the MVD building. Thirty to forty minutes later Mr Sh. had returned and had told Mr A. that four men in camouflage uniforms had taken Bekman Asadulayev away to an unknown destination. Five to ten minutes later Mr S., head of the ROVD, had approached Mr A. and Mr Sh. Mr A. had asked Mr S. what had occurred and why Bekman Asadulayev had been taken away. Mr S. had explained that Bekman Asadulayev had been taken away to be questioned. Mr S. had then collected Bekman Asadulayev’s submachine gun.

(iv)  Questioning of the third applicant

45.  On 15 March 2004 the investigators questioned the third applicant as a witness. She submitted that on 14 January 2004 her brother had been summoned to the MVD, together with Mr Sh., in connection with the former’s absence from the police school. The third applicant had learnt from Mr Sh. that when Mr Sh. and Bekman Asadulayev had left the MVD building, located within the secure grounds of the MVD, several men armed with automatic weapons had approached them. They had forced her brother into a dark blue VAZ-21099 car without licence plates and had taken him to an unknown destination. Subsequently, the third applicant had been received by the deputy Minister of the Interior of the Chechen Republic, Mr Zh., who had confirmed that Bekman Asadulayev had been summoned to the MVD to provide some information. Bekman Asadulayev’s written statement had been given to Mr G. Mr Zh. himself had not seen her brother, but had promised to investigate the incident.

46.  On the same day the third applicant was granted the status of victim in criminal proceedings no. 30012.

(v)  On-site verification of the statements by Mr Sh.

47.  On 16 March 2004 the investigators conducted an on-site verification of the statements by Mr Sh. During the verification Mr Sh. confirmed his previous statements and “indicated to the investigators the location of the objects of interest to the [them]”.

(vi)  Statements by M., Z.A. and Z.I.

48.  On 23 March 2004 a certain Ms M. gave the investigators a written statement which was appended to case file no. 30012. Ms M. stated, in particular, that she traded food at a market in Altayskaya Street, opposite the MVD. On 14 January 2004 Ms M had been trading at the market. On that day she had not noticed anything suspicious and had not heard about the abduction of Bekman Asadulayev.

49.  The Government submitted that on an unspecified date a certain Ms Z. A. and a certain Ms Z. I. made statements similar to that of Ms M.

(vii)  Questioning of Mr D.

50.  On 30 April 2004 the investigators questioned as a witness Mr D., who at the time of the incident had held the post of acting Minister of the Interior of the Chechen Republic. Mr D. submitted that on 10 January 2004 Mr Zh. had informed him that the personal files of several police officers were incomplete. In that connection Mr D. had summoned to the MVD all police officers whose personal files did not comply with the established requirements. In the beginning of February 2004 relatives of Bekman Asadulayev had on several occasions applied to Mr D. in connection with the alleged abduction of their relative from the secure grounds of the MVD. Mr D. had not met Bekman Asadulayev and had never spoken to him.

51.  The Government submitted that the investigators had not questioned Mr G., who had received Bekman Asadulayev on 14 January 2004, because he had left the Chechen Republic on an unspecified date.

52.  The Government further submitted that the investigation in case no. 30012 had been suspended several times owing to the failure to identify those responsible for the abduction of Bekman Asadulayev. The investigation had then been resumed with a view to verifying the information obtained as a result of the investigative steps taken by the authorities. The Government did not indicate the dates of the decisions to suspend and resume the investigation, nor did they furnish any further information in that connection. According to the Government, the investigation into the abduction of Bekman Asadulayev was still ongoing.

53.  Despite specific requests by the Court, the Government refused to furnish any copies from the investigation file in case no. 30012. They claimed that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning witnesses and other participants in the criminal proceedings.

C.  Subsequent court proceedings

1.  Proceedings to have Bekman Asadulayev declared a missing person

54.  By a judgment of 21 June 2005 the Groznenskiy District Court of the Chechen Republic (the District Court) allowed an action by the second applicant to have her husband declared a missing person.

2.  Proceedings to have Bekman Asadulayev declared dead

55.  On an unspecified date in 2006 the second applicant filed with the District Court a civil action to have her husband declared dead. She submitted, in particular, that Bekman Asadulayev had disappeared in life-threatening circumstances, that two years had elapsed since his disappearance and that, given the situation in the Chechen Republic, there were grounds to believe that he had been killed following his abduction.

56.  On 25 May 2006 the District Court dismissed the second applicant’s claim. The court’s reasoning, in its relevant parts, was as follows:

“[The court] obtained copies of materials from criminal case file [no. 30012].

From the decision of 4 February 2004 to institute criminal proceedings it transpires that on 14 January 2004 four unidentified men in camouflage uniforms, armed with automatic weapons, arrived at the entrance to the [MVD] building in a dark blue VAZ-21099 vehicle without licence plates and took Bekman Asadulayev, born in 1979, by force to an unknown destination from the secure grounds of the [MVD]; [Bekman Asadulayev’s] whereabouts remain unknown.

From the transcripts of the interview of the deputy Minister of the Interior of the Chechen Republic, Mr Zh., dated 9 March 2004; the head of the Groznenskiy ROVD, Mr S., dated 19 February 2004; the acting head of the Pobedinskoye police office, Mr Sh., dated 18 February 2004, and the then acting Minister of the Interior, Mr D., dated 30 April 2004, it follows that [Bekman Asadulayev] had been taken away with their knowledge [с их ведома] and, most likely, by officials of the power structures. Hence, the court finds no reasons to believe that [Bekman Asadulayev] could have perished during his abduction and is not alive.

Thus, the latest date when there was information on [Bekman Asadulayev’s] whereabouts is 14 January 2004. The five-year term has not expired.

However, under Article 45 of the Civil Code, a citizen may be declared dead if in his place of residence there has been no information on his whereabouts for five years; if he has gone missing in life-threatening circumstances or there are grounds to believe that he has died as a result of an accident [a citizen may be declared dead] within six months.

The court is not in possession of any information that [Bekman Asadulayev] went missing in life-threatening circumstances, as a consequence of which his death could be presumed, because he was taken away from secure grounds to which no person has access without a proper pass.”

57.  There is no indication that the second applicant challenged the District Court judgment on appeal.

II.  RELEVANT DOMESTIC LAW

58.  Article  125 of the Russian Code of Criminal Procedure 2001 (“CCP”) provides that an investigator’s or prosecutor’s decision to refuse to institute criminal proceedings or to terminate a case, and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen’s access to justice may be appealed against to a local district court, which is empowered to examine the lawfulness and grounds of the impugned decisions.

59. Article 161 of the CCP prohibits the disclosure of information from the preliminary investigation file. Under part 3 of the Article, information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings or prejudice the investigation. Divulging information about the private lives of parties to criminal proceedings without their permission is prohibited.

60.  Article 1069 of the Russian Civil Code provides that damage sustained by an individual because of unlawful actions or inaction of State and municipal agencies or their officials is to be compensated for by a State or municipal treasury.

THE LAW

I.  THE GOVERNMENT’S OBJECTION REGARDING NON-EXHAUSTION OF DOMESTIC REMEDIES

A.  The parties’ submissions

61.  The Government argued that the application should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the abduction of Bekman Asadulayev had not yet been completed. They further claimed that the applicants had not brought any civil claims for compensation for damage under Article 1069 of the Civil Code or challenged the investigators’ decisions in court under Article 125 of the CCP.

62.  The applicants contested that objection. They argued that the criminal investigation had proved to be ineffective, having produced no meaningful results after more than four years.

B.  The Court’s assessment

63.  The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI; Akdivar and Others v. Turkey, 16 September 1996, §§65-67, Reports 1996-IV, and, most recently, Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64, 27 June 2006).

64.  It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Akdivar and Others, cited above, § 68, or Cennet Ayhan and Mehmet Salih Ayhan, cited above, § 65).

65.  Having regard to the Government’s arguments, the Court notes that the Russian legal system provides, in principle, two avenues of recourse for victims of illegal and criminal acts attributable to the State or its agents, namely, civil and criminal remedies.

66.  As regards a civil action for compensation for damage caused by unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-121, 24 February 2005, and Estamirov and Others v. Russia, no. 60272/00, § 77, 12 October 2006). In the light of the above, the Court considers that the applicants were not obliged to pursue civil remedies.

67.  As regards law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law enforcement authorities shortly after the abduction of Bekman Asadulayev and that an investigation has been pending since 4 February 2004. The applicants and the Government dispute the effectiveness of the investigation into the kidnapping.criminal

68.  The Court considers that this part of the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants’ complaints. Thus, it decides to join this objection to the merits and considers that the issue falls to be examined below under the substantive provisions of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

69.  The applicants complained under Article 2 of the Convention that their relative had disappeared after being detained by State agents and that the authorities had failed to carry out an effective investigation into his disappearance. Article 2 reads:

“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

A.  The parties’ submissions

1.  Submissions by the Government

70.  The Government submitted that unidentified armed men had abducted Bekman Asadulayev from the secure grounds of the MVD. They noted that the investigation into the incident was pending and that there was no evidence that the abductors had been State agents. In particular, while mentioning the abductors’ camouflage uniforms, the applicants had never referred to insignia on them or other details which could have enabled the authorities to establish the affiliation of the perpetrators to a particular military service. Moreover, the first applicant had described the uniforms as “unusual” and, in any event, she had not been an eyewitness to the abduction, her only source of information being Mr Sh. From his description of the abductors’ camouflage uniforms as “unusual” it transpired that he had doubted that the perpetrators had belonged to the Russian military. The applicants also failed to indicate whether the abductors had used specific military terms or expressions. The fact that they had carried weapons and had spoken Russian did not prove that they had belonged to the Russian military. The Government further stressed that members of illegal armed groups had often passed themselves off for servicemen or members of law-enforcement bodies and had freely entered the premises where the latter had been stationed. In this connection they referred to the events in Beslan where the perpetrators had passed several checkpoints unhindered and had subsequently taken over one thousand people hostage. In the Government’s opinion, Bekman Asadulayev might have been abducted either by members of illegal armed groups in connection with his professional activity as a police officer or by third persons because of a personal feud. Moreover, had the authorities suspected him of membership of illegal armed groups, they would not have needed to mount a plot and would have prosecuted him in the proper way. The Government stressed in that connection that none of the heads of the “power structures” had formally confirmed the fact of Bekman Asadulayev’s arrest.

71.  The Government further pointed to several inconsistencies in the applicants’ account of events. In particular, while the applicants alleged that Bekman Asadulayev had been summoned to the MVD because he had missed his classes, the real purpose had been to obtain information concerning his recruitment. Furthermore, Bekman Asadulayev had been the only person summoned to the MVD. Mr Sh. had simply accompanied him there and had not submitted any written statements to Mr G. Furthermore, whilst the applicants claimed that armed men had entered Mr G.’s office when Bekman Asadulayev had been handing his statement to Mr G., according to Mr Sh.’s statement the armed men had come into the office before Bekman Asadulayev had started to compile his statement. The Government particularly stressed that it had not followed from Mr Sh.’s testimony that Mr G. had been surprised by the arrival of the armed men in his office. The Government concluded that either Mr G. had known those men or he had been aware of the reason for their arrival.

72.  The Government also pointed out that while according to the applicants the armed men had followed Bekman Asadulayev and Mr Sh. in the MVD building, it followed from Mr Sh.’s statements that he had seen four armed men outside the building near the VAZ-21099 car. More importantly, Mr Sh. had never specified that the men by the VAZ vehicle and those who had entered Mr G.’s office had been the same persons. According to the Government, Mr Sh. had submitted that he would have been able to identify the abductors because they had not worn masks. However, when he had subsequently visited various departments of the Ministry of the Interior, he had never met those persons, although the overall number of police officers in the Chechen Republic is not particularly high. Lastly, the applicants’ submission that the abductors had handcuffed Bekman Asadulayev had not been confirmed by Mr Sh. who had never mentioned that fact while being questioned by the investigators.

73.  The Government further contended that the investigation into the abduction of the applicants’ relative met the Convention requirements of effectiveness. It was being conducted by the district prosecutor’s office, an independent body, which had checked various theories of the incident, including the possible involvement of servicemen in the abduction. Numerous requests for information had been sent to various State authorities; the third applicant, who had been granted victim status, had been questioned, as well as all other persons who might have had information on the events of 14 January 2004.

2.  The applicants’ submissions

74.  The applicants maintained that it was beyond reasonable doubt that the men who had taken Bekman Asadulayev away from the secure grounds of the MVD had been State agents. They submitted that State representatives frequently omitted to wear uniforms with recognisable insignia, so that their actions could not be traced. Since the beginning of the military conflict in 1999 camouflage uniforms had been withdrawn from unrestricted sale and representatives of the federal forces had seized such uniforms and detained individuals who had them. The applicants further stressed that the unhindered passage of the abductors of Bekman Asadulayev through the checkpoints had indicated that the MVD security personnel had either recognised them or had had an order to let them through. In that connection the applicants emphasised that if the abductors had been members of illegal armed groups, their unhindered passage through the secure MVD grounds should have prompted the authorities to investigate such a serious security breach. However, nothing in the Government’s submissions indicated that this had been done. They further pointed to the Government’s admission that Mr G. had not been surprised by the arrival of the armed men in his office which, in the applicants’ opinion, lent further credence to their argument that the abductors of Bekman Asadulayev had been State agents. The applicants also argued that the alleged discrepancies in their account of events had not had particular bearing on the establishment of the fact of their relative’s detention by State agents. In any event, it followed from the statement by Mr Sh. cited by the Government that Bekman Asadulayev had simply surmised that his summoning had been prompted by unauthorised leave. Furthermore, the applicants had not alleged that Mr Sh. had also been summoned to the MVD. As for the exact time of arrival of the armed men in Mr G.’s office, it had also been irrelevant since the Government had not disputed the fact of their arrival there. Insofar as the Government argued that the armed men who had entered Mr G.’s office and those outside the building might have been different persons, it could not be verified since the Government had failed to produce a copy of the statement by Mr Sh. to that effect. In so far as the handcuffing was concerned, Mr Sh. had not mentioned it in the statement relied on by the Government. In reply to the Government’s submission that Bekman Asadulayev might have been targeted by insurgents because of his professional activities, the applicants pointed out that the domestic investigation had not obtained any evidence of the possible involvement of members of illegal armed groups in his disappearance. With reference to the case of Kukayev v. Russia (no. 29361/02, 15 November 2007), they further claimed that the fact of being a police officer in the Chechen Republic did not, as such, minimise the risk of abduction by State agents.

75.  The applicants argued that Bekman Asadulayev should be presumed dead following his disappearance in life-threatening circumstances and in the absence of any news of him for several years. They also argued that the prosecuting authorities had failed to carry out crucial investigative steps such as questioning the security personnel at the checkpoints and Mr G. The applicants had not been properly informed of the most important investigative measures. The investigation had been adjourned and resumed several times. It had been ongoing for four years without producing any known results.

B.  The Court’s assessment

1.  Admissibility

76.  The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 68 above). The complaint under Article 2 of the Convention must therefore be declared admissible.

2.  Merits

(a)  The alleged violation of the right to life of Bekman Asadulayev

77.  The Court reiterates that, in the light of the importance of the protection afforded by Article 2, it must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Detained persons are in a vulnerable position and the obligation on the authorities to account for the treatment of a detained individual is particularly stringent where that individual dies or disappears thereafter (see, among other authorities, Orhan v. Turkey, no. 25656/94, § 326, 18 June 2002, and the authorities cited therein). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in detention, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV).

78.  The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).

79.  These principles also apply to cases in which, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible explanation of what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty (see Taniş and Others v. Turkey, no. 65899/01, § 160, ECHR 2005–VIII).

80.  The applicants alleged that on 14 January 2004 their relative, Bekman Asadulayev, had been abducted by State agents from the secure grounds of the MVD and had then disappeared. The applicants had not been eyewitnesses to those events. However, they submitted a written statement by Mr A., who had accompanied Bekman Asadulayev on that day; three hand-drawn maps of the grounds of the MVD; the first applicant’s statement to the SRJI and the District Court decision of 25 May 2006 issued in the context of the proceedings to have Bekman Asadulayev declared dead.

81.  The Government denied that State agents had been involved in the abduction of Bekman Asadulayev. Although they referred to several inconsistencies in the applicants’ and witnesses’ statements, they did not question the main factual elements underlying the applicants’ version of his abduction. The Government also insisted that the investigation was pending and that it had not confirmed the applicants’ theory.

82.  The Court notes at the outset that despite its requests for a copy of the file of the investigation into the abduction of Bekman Asadulayev, the Government produced no documents from the case file, referring to Article 161 of the CCP. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-… (extracts)).

83.  In view of this and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government’s conduct in that respect. The Court will thus proceed to examine the crucial elements in the present case that should be taken into account in order to decide whether the applicants’ relative’s disappearance should be attributed to the State authorities and whether he should be presumed dead.

84.  The Court observes that it is common ground between the parties that on 14 January 2004 Bekman Asadulayev was summoned to the MVD and was subsequently abducted from its secure grounds. In this connection the Court points out that the Government did not challenge the description of the MVD grounds and the secured road leading to them, as presented by the applicants and, in particular, in the hand-drawn maps produced by them. From those documents it follows that the MVD grounds were surrounded by a high fence; that the entrance to the grounds had been secured by armed guards and that access to the grounds was only possible through a checkpoint where the visitors’ identity information was registered in special logbooks. Moreover, two further checkpoints were situated on the access road to the MVD grounds. In the absence of any submissions by the Government to the effect that on 14 January 2004 there had been a security breach on the grounds of the MVD by reason of the insurgents’ unhindered passage through several checkpoints, or any indication that the authorities had investigated that security breach, the Court is bound to conclude that the abduction took place on premises over which State authorities exercised full control at the material time. Bearing this in mind and applying the principles enunciated in paragraph 79 above, the Court considers that the onus is thus on the Government to provide a plausible explanation of what happened on the premises and to show that Bekman Asadulayev was not detained by the authorities, but left the premises without subsequently being deprived of his liberty.

85.  However, the Court is not persuaded by the Government’s submissions that Bekman Asadulayev had been abducted by insurgents or private persons because of a personal feud. In the first place the Court can hardly discern how a group of four men wearing camouflage uniforms, driving a car without licence plates and armed with automatic weapons could have passed three checkpoints leading to the MVD secure grounds, entered those secure premises, forced a person into their vehicle in broad daylight in front of the MVD building and left the secure grounds unhindered, without raising any suspicion. In the Court’s view, this fact would rather strongly support the applicants’ allegation that these were State agents (compare Alikhadzhiyeva v. Russia, no. 68007/01, § 59, 5 July 2007; Nasukhanova and Others v. Russia, no. 5285/04, § 95, 18 December 2008; and Ruslan Umarov v. Russia, no. 12712/02, § 91, 3 July 2008). Furthermore, had the abductors been insurgents, it would have been reasonable to expect the authorities to investigate such a serious security breach. However, nothing in the Government’s submissions indicates that this had been done in the present case. In the same vein, they presented no evidence to confirm that the investigating authorities had ever considered the theory that a personal feud had been behind the incident or taken any genuine steps to examine it.

86.  Reiterating the principles enunciated in paragraph 79 above, the Court notes that the foregoing elements alone would be sufficient to conclude that the applicants’ relative was abducted by State agents. Nonetheless, it cannot disregard several further circumstances which weigh heavily in support of the applicants’ submission that their relative had been abducted by State agents.

87.  Thus, whilst the Court was refused access to the case file, it transpires from the decision of 25 May 2006 that the District Court was given such access (see paragraph 56 above). Having directly examined documents from the investigation case file, including the interview transcripts of Mr Zh., Mr S., Mr Sh. and Mr D., the District Court concluded that the applicants’ relative had been taken away “with the knowledge” of the MVD officials and “most likely, by officials of the power structures” (ibid.).

88.  The Court also cannot overlook the statements by Mr Sh. and Mr A., referred to by the Government and also by the District Court in its decision of 25 May 2006. Those officers had submitted to the investigators that Mr S. had confirmed to them that Bekman Asadulayev had been taken away by “the competent authorities” “for questioning”, in connection with some “information capable of compromising him” (see paragraphs 32 and 44 above).

89.  The Government disputed several details of the applicants’ account of the events surrounding the abduction of their relative, such as the reason for his summoning to the MVD, the exact time of the arrival of the armed men in the office of Mr G., their “unusual” uniforms and, lastly, Bekman Asadulayev’s possible handcuffing. However, as the Government themselves correctly suggested, the applicants had not eyewitnessed the abduction of their relative and it is logical that they based their account of the events on all possible sources of information available to them. Furthermore, the Court does not consider that those alleged inconsistencies are such as to undermine the otherwise coherent and convincing picture of Bekman Asadulayev’s abduction presented by applicants. In any event, in view of its findings in paragraphs 84-86 it does not consider it necessary to resolve those alleged discrepancies.

90.  Taking into account the elements discussed above, the Court is satisfied that Bekman Asadulayev was abducted on 14 January 2004 from the secure grounds of the MVD by State agents during an unacknowledged security operation.

91.  It is further to be decided whether Bekman Asadulayev is to be presumed dead following his apprehension by State agents. In this connection the Court observes that the District Court refused to declare the applicants’ relative dead. It firstly noted that the statutory five-year term for declaring dead a person that had gone missing in normal circumstances had not expired at the time of its examination of the case. Secondly, it did not consider that the applicants’ relative had disappeared in life-threatening circumstances (see paragraph 56 above). However, this Court is unable to accept that domestic court’s findings for the following reasons.

92.  Firstly, the Court reiterates that its competence is confined to the international-law responsibility under the Convention which is based on its own provisions, to be interpreted and applied on the basis of the objectives of the Convention and in light of the relevant principles of international law (see Avşar v. Turkey, no. 25657/94, § 284, ECHR 2001-VII (extracts)).

93.  Furthermore, in the Timurtaş v. Turkey judgment (no. 23531/94, §§ 82-83, ECHR 2000-VI) the Court stated:

“… where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused, failing which an issue arises under Article 3 of the Convention …. In the same vein, Article 5 imposes an obligation on the State to account for the whereabouts of any person taken into detention and who has thus been placed under the control of the authorities…. Whether the failure on the part of the authorities to provide a plausible explanation as to a detainee’s fate, in the absence of a body, might also raise issues under Article 2 of the Convention will depend on all the circumstances of the case, and in particular on the existence of sufficient circumstantial evidence, based on concrete elements, from which it may be concluded to the requisite standard of proof that the detainee must be presumed to have died in custody…

In this respect the period of time which has elapsed since the person was placed in detention, although not decisive in itself, is a relevant factor to be taken into account. It must be accepted that the more time goes by without any news of the detained person, the greater the likelihood that he or she has died. The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person concerned is to be presumed dead. In this respect the Court considers that this situation gives rise to issues which go beyond a mere irregular detention in violation of Article 5. Such an interpretation is in keeping with the effective protection of the right to life as afforded by Article 2, which ranks as one of the most fundamental provisions in the Convention….”

94.  In view of the above, the Court identified a number of crucial elements in the present case that should be taken into account when deciding whether Bekman Asadulayev can be presumed dead. Thus, the Court points out that it has found it established that the applicants’ relative was abducted from the secure premises of the MVD by unidentified State agents. There has been no news of him since that date, which is more than five years ago. The Court particularly stresses that in a number of cases concerning disappearance of people in the Chechen Republic it repeatedly held that when a person is detained by unidentified State agents without any subsequent acknowledgment of the detention, this can be regarded as life-threatening (see, among many other authorities, Bazorkina and Imakayeva, both cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-… (extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva v. Russia, no. 40464/02, 10 May 2007, and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007). The Court has found the same considerations to apply to a situation where a person entered the premises of a police station and went missing for years (see Yusupova and Zaurbekov v. Russia, no. 22057/02, § 55, 9 October 2008). The absence of any news of Bekman Asadulayev for over five years corroborates this assumption. Moreover, his name has not been found in the official records of any detention facility. Lastly, the Government failed to provide any explanation for Bekman Asadulayev’s disappearance, and the official investigation into his kidnapping, which has been dragging on for more than five years, has produced no known results.

95.  For the above reasons the Court finds it established that Bekman Asadulayev should be presumed dead following his unacknowledged abduction and detention by State agents on 14 January 2004.

96.  In the absence of any plausible explanation on the part of the Government as to the circumstances of Bekman Asadulayev’s death, the Court further finds that the Government have not accounted for the death of the applicants’ relative and the respondent State’s responsibility for this death is therefore engaged.

97.  Accordingly, there has been a violation of Article 2 of the Convention in this connection.

(b)  The alleged inadequacy of the investigation into the abduction

98.  The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see Kaya v. Turkey, 19 February 1998, § 86, Reports 1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-09, ECHR 2001-III (extracts), and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).

99.  The Court notes at the outset that the documents from the investigation were not disclosed by the Government. The Court therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the applicant and the information on its progress presented by the Government.

100.  Turning to the circumstances of the case, the Court observes that, according to the Government’s information, Mr S. informed the MVD authorities about the abduction of Bekman Asadulayev on 14 January 2004, that is, on the day when the latter disappeared. However, it does not appear that any steps were taken by the authorities until 17 January 2004, when the third applicant filed with the district prosecutor’s office a formal complaint about the abduction of her brother. It further transpires that although on 17 and 23 January 2004 Mr Sh. and Mr S., respectively, were questioned in the course of an internal inquiry, it was only eighteen days later that the district prosecutor’s office decided to institute a criminal investigation into the abduction of Bekman Asadulayev. In the Court’s opinion, this important delay, for which no explanation was provided, was in itself liable to affect the investigation of a crime such as abduction in life-threatening circumstances, where crucial action must be taken expeditiously.

101.  The Court further observes that, according to the Government, upon the institution of the investigation the authorities questioned a number of witnesses, granted the third applicant victim status and sent several requests for information to various authorities. The Court finds however that they failed to take a number of essential steps. Most notably, there is no indication that the investigators tried to identify and question the servicemen and the security guards on duty at any of the checkpoints on 14 January 2004. Neither does it transpire that they checked the visitors’ logbooks kept at those checkpoints. Furthermore, the Government conceded that the investigators had not questioned Mr G., who had received Bekman Asadulayev and Mr Sh. on 14 January 2004 and who, according to Mr Sh., had been in his office when armed men in camouflage uniforms had entered it. The Court is further struck by the fact that although, in the Government’s submission, Mr Sh. had explicitly stated that the abductors of Bekman Asadulayev had not worn masks and that he would recognise them, no attempts had been made to identify them by, for example, compiling photofit pictures of them. It also does not follow from the Government’s submissions that any attempts were made to identify the vehicle in which the abductors had taken Bekman Asadulayev away. In the Court’s opinion, all those omissions on the part of the investigating authorities clearly undermined the ability of the investigation to establish the circumstances of the abduction of the applicants’ relative and to identify those responsible for it.

102.  The Court also notes that even though the third applicant was eventually granted victim status, it transpires that she was not informed of any significant developments in the investigation. In particular, it does not transpire that she was timely notified about the institution of the investigation. Regard being had to the third applicant’s and the applicants’ representatives’ repeated requests for information, it appears that the applicants were not notified even about such basic developments in the investigation as the decisions to suspend or resume it. Furthermore, there is no indication that the first and second applicants were granted victim status. Accordingly, the investigators failed to ensure that the investigation received the required degree of public scrutiny, or to safeguard the interests of the next of kin in the proceedings (see Oğur v. Turkey [GC], no. 21594/93, § 92, ECHR 1999-III).

103.  Lastly, the Court points out that the investigation has been pending for over five years and, according to the Government, was suspended and resumed several times owing to the failure to identify the perpetrators. The Government failed to provide the exact dates of those decisions but it is not clear from their submissions whether any investigative steps were taken after 30 April 2004 and if so, what they were. The Court doubts that the way the investigation was handled increased the prospects of identifying the perpetrators and establishing the fate of Bekman Asadulayev.

104.  Having regard to the Government’s preliminary objection, which was joined to the merits of the complaint, the Court considers that the applicants, who did not have access to the case file and were not properly informed of the progress of the investigation, including the most basic decisions, could not have effectively challenged the actions or omissions of the investigating authorities before a court under Article 125 of the CCP, contrary to what was suggested by the Government. Therefore, it is highly doubtful that the remedy relied on would have had any prospects of success. Accordingly, the Court finds that the remedy cited by the Government was ineffective in the circumstances and dismisses their preliminary objection as regards the applicants’ failure to exhaust the domestic remedies within the context of the criminal investigation.

105.  In the light of the foregoing, the Court finds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the abduction and subsequent death of Bekman Asadulayev in breach of Article 2 under its procedural head. Accordingly, there has been a violation of Article 2 on this account also.

III.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

106.  The applicants relied on Article 3 of the Convention, submitting that as a result of their relative’s disappearance and the State’s failure to investigate it properly they had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  The parties’ submissions

107.  The Government submitted that the investigation had not established that the applicants’ relative had been kidnapped by State agents. Neither had it established that the applicants had been subjected to treatment contrary to Article 3 of the Convention.

108.  The applicants maintained their complaint.

B.  The Court’s assessment

1.  Admissibility

109.  The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other ground. It must therefore be declared admissible.

2.  Merits

110.  The Court observes that the question whether a member of the family of a “disappeared person” is a victim of treatment contrary to Article 3 will depend on the existence of special factors which give the suffering of the applicants a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. The Court would further emphasise that the essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct (see Orhan, cited above, § 358, and Imakayeva, cited above, § 164).

111.  In the present case the Court notes that the missing person is the brother of the first and third applicants and the husband of the second applicant. For over five years they had no news of him. Although the applicants were not eyewitnesses to Bekman Asadulayev’s apprehension, the first and the third applicants applied to various official bodies with enquiries about him. Despite their attempts, they have never received any plausible explanation or information as to what became of him following his abduction. The Court’s findings under the procedural aspect are also of direct relevance here. The Court also considers that the second applicant, who constituted immediate family of the disappeared person, was also to a certain extent involved in the search for her husband. In the Court’s view, the second applicant’s mental anguish in connection with her husband’s disappearance must have been exacerbated by the fact that, whilst the District Court explicitly stated that her husband had been apprehended by officials of power structures and with the knowledge of the MVD officials, the investigation persisted in denying any implication of State agents in the abduction.

112.  In view of the above, the Court finds that the applicants suffered distress and anguish as a result of the disappearance of their close relative and their inability to find out what happened to him. The manner in which their complaints have been dealt with by the authorities must be considered to constitute inhuman treatment contrary to Article 3.

IV.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

113.  The applicants further stated that Bekman Asadulayev was detained in violation of the guarantees of Article 5 of the Convention, which reads, in so far as relevant:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:…

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

…

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.  Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A.  The parties’ submissions

114.  In the Government’s opinion, no evidence was obtained by the investigators to confirm that Bekman Asadulayev had been deprived of his liberty in breach of the guarantees set out in Article 5 of the Convention.

115.  The applicants reiterated their complaint.

B.  The Court’s assessment

1.  Admissibility

116.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds and must therefore be declared admissible.

2.  Merits

117.  The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122).

118.  The Court has found it established that Bekman Asadulayev was abducted by State agents on 14 January 2004 and has not been seen since. His detention was not acknowledged, it was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records, noting such matters as the date, time and location of detention and the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).

119.  The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants’ complaints that their close relative had been apprehended and taken away in life-threatening circumstances. However, the Court’s findings above in relation to Article 2 and, in particular, the conduct of the investigation, leave no doubt that the authorities failed to take prompt and effective measures to safeguard him against the risk of disappearance.

120.  In view of the foregoing, the Court finds that Bekman Asadulayev was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

V.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

121.  The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A.  The parties’ submissions

122.  The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them.

123.  The applicants reiterated the complaint.

B.  The Court’s assessment

1.  Admissibility

124.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

125.  The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. According to the Court’s settled case-law, the effect of Article 13 of the Convention is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of a relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, among many other authorities, Halford v. the United Kingdom, 25 June 1997, § 64, Reports 1997-III).

126.  As regards the complaint of lack of effective remedies in respect of the applicants’ complaint under Article 2, the Court emphasises that, given the fundamental importance of the right to protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-62, ECHR 2002-IV, and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005). The Court further reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Khashiyev and Akayeva, cited above, § 183).

127.  In view of the Court’s above findings with regard to Article 2, this complaint is clearly “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). The applicants should accordingly have been able to avail themselves of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation for the purposes of Article 13.

128.  It follows that in circumstances where, as here, the criminal investigation into the disappearance has been ineffective and the effectiveness of any other remedy that may have existed has consequently been undermined, the State has failed to discharge its obligation under Article 13 of the Convention.

129.  Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.

130.  As regards the violation of Article 3 of the Convention found on account of the applicants’ mental suffering as a result of the disappearance of their relative, their inability to find out what had happened to him and the way the authorities had handled their complaints, the Court notes that it has already found a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention on account of the authorities’ conduct that led to the suffering endured by the applicants. The Court considers that, in the circumstances, no separate issue arises in respect of Article 13 in connection with Article 3 of the Convention.

131.  As regards the applicants’ reference to Article 5 of the Convention, the Court reiterates that, according to its established case-law, the more specific guarantees of Article 5 §§ 4 and 5, being a lex specialis in relation to Article 13, absorb its requirements and in view of its above findings of a violation of Article 5 of the Convention as a result of unacknowledged detention, the Court considers that no separate issue arises in respect of Article 13 read in conjunction with Article 5 of the Convention in the circumstances of the present case.

VI.  ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

132.  The applicants complained that they had been discriminated against in the enjoyment of their Convention rights, because the violations of which they complained had taken place because of their being residents in Chechnya and their ethnic backgrounds as Chechens. This was contrary to Article 14 of the Convention, which reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

133.  The Court observes that no evidence has been submitted to it that suggests that the applicants were treated differently from persons in an analogous situation without objective and reasonable justification, or that they have ever raised this complaint before the domestic authorities. It thus finds that this complaint has not been substantiated.

134.  It follows that this part of the application is manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

VII.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

135.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

1.  Pecuniary damage

136.  The second applicant claimed that she and her two children had sustained damage in respect of loss of her husband’s earnings following his apprehension and disappearance. She claimed a total of 1,031,794.70 Russian roubles (RUB) under this head (approximately 29,147 euros (EUR)). The first and third applicants made no claims as regards compensation for pecuniary damage.

137.  The second applicant furnished a certificate from the Groznenskiy ROVD confirming that Bekman Asadulayev’s salary for the last month of his employment had amounted to RUB 6,159.16. With reference to the provisions of the Civil Code and the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary Department in 2007 (“the Ogden tables”), the second applicant submitted that she would have benefitted from Bekman Asadulayev’s support in the amount of 20% of his earnings, while each of their two children would have benefitted from their father’s support in the amount of 10% of his earnings.

138.  The Government submitted, without providing further details, that the second applicant should have based her claims on Article 1088 of the Civil Code instead of the Ogden tables. They further pointed out that she had not made use of the domestic avenues for obtaining compensation for the loss of a breadwinner.

139.  The Court reiterates that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention, and that this may, in an appropriate case, include compensation in respect of loss of earnings. Having regard to its above conclusions, it finds that there is a direct causal link between the violation of Article 2 in respect of the second applicant’s husband and the loss by her of the financial support which he could have provided. The Court further finds that the loss of earnings also applies to dependent children and that it is reasonable to assume that Bekman Asadulayev’s children would have benefitted from his support (see Imakayeva, cited above, § 213). Having regard to the second applicant’s submissions, the Court awards EUR 20,000 to the second applicant in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

2.  Non-pecuniary damage

140.  The applicants claimed compensation for the suffering they had endured as a result of the loss of their relative, their inability to properly bury him and the indifference shown by the authorities in connection with the investigation of his abduction. The first and third applicants claimed EUR 25,000 each, while the second applicant claimed EUR 50,000 under this head.

141.  The Government contested the applicants’ claims as excessive.

142.  The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants’ relative. The applicants have been found victims of a violation of Article 3 of the Convention. The Court thus accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It finds it appropriate to award EUR 31,000 to the second applicant and EUR 2,000 each to the first and third applicants in respect of non-pecuniary damage, plus any tax that may be chargeable thereon.

B.  Costs and expenses

143.  The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews in Ingushetia and Moscow, at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities, at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 for SRJI senior staff, as well as administrative expenses, translation and courier mail fees. The aggregate claim in respect of costs and expenses related to the applicants’ representation amounted to EUR 6,118.39.

144.  The Government submitted that reimbursement of costs was to be ordered by the Court only if those had been actually incurred and were reasonable as to quantum.

145.  The Court has to establish first whether the costs and expenses indicated by the applicants’ relatives were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).

146.  Having regard to the details of the information and legal representation contracts submitted by the applicants, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives.

147.  Further, it has to be established whether the costs and expenses incurred for legal representation were necessary. The Court notes that this case was rather complex and required a certain amount of research and preparation. It notes, however, that the case involved little documentary evidence, in view of the Government’s refusal to submit the case file. Furthermore, due to the application of Article 29 § 3 in the present case, the applicants’ representatives submitted their observations on the admissibility and merits in one set of documents. The Court thus doubts that research was necessary to the extent claimed by the applicants’ representatives.

148.  Having regard to the details of the claims submitted by the applicants, the Court awards them EUR 5,200, together with any value-added tax that may be chargeable to the applicants; the award to be paid into the representatives’ bank account in the Netherlands, as indicated by the applicants.

C.  Default interest

149.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Decides to join to the merits the Government’s objection concerning non-exhaustion of domestic remedies and rejects it;

2.  Declares the complaints under Articles 2, 3, 5 and 13 of the Convention admissible and the remainder of the application inadmissible;

3.  Holds that there has been a violation of Article 2 of the Convention in respect of Bekman Asadulayev;

4.  Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Bekman Asadulayev disappeared;

5.  Holds that there has been a violation of Article 3 of the Convention in respect of the applicants’ mental suffering;

6.  Holds that there has been a violation of Article 5 of the Convention in respect of Bekman Asadulayev;

7.  Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;

8.  Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5;

9.  Holds

(a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i)  EUR 20,000 (twenty thousand euros) to the second applicant in respect of pecuniary damage, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement;

(ii)  EUR 31,000 (thirty one thousand euros) to the second applicant, EUR 2,000 (two thousand euros) to the first and third applicants each in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement;

(iii)  EUR 5,200 (five thousand two hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

10.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 17 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President

CASE OF MAGOMADOVA AND OTHERS v. RUSSIA

(Application no. 33933/05)

JUDGMENT

STRASBOURG

17 September 2009

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Magomadova and Others v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 27 August 2009,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 33933/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by five Russian nationals, listed below (“the applicants”), on 20 September 2005.

2.  The applicants were represented by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Mr A. Savenkov, First Deputy Minister of Justice, and subsequently by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3.  On 17 March 2008 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application and to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. The President of the Chamber acceded to the Government’s request not to make publicly accessible the documents from the criminal investigation file deposited with the Registry in connection with the application (Rule 33 of the Rules of Court).

4.  The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicants are:

1) Ms Koku (also spelled as Koka) Magomadova, born in 1942,

2) Ms Ayshat Magomadova (also known as Taymuskhanova), born in 1976,

3) Ms Eset (also spelled as Aset) Magomadova, born in 1995,

4) Mr Baudin Magomadov, born in 1997,

5) Ms Ayzan Muradova, born in 1965.

The applicants live in Grozny, Chechnya. The first applicant is the mother of Ruslan Magomadov, who was born in 1966. The second applicant is his wife; the third and the fourth applicants are his daughter and son; the fifth applicant is his sister.

6.  The facts of the case, as submitted by the parties, may be summarised as follows.

A.  Disappearance of Ruslan Magomadov and the subsequent events

1.  The applicants’ account

7.  At the material time Ruslan Magomadov was working as a senior officer at the investigations department in the Shatoy district department of the interior in Chechnya (the Shatoy ROVD). He had been doing this since 2000.

8.  On the night of 9 February 2003 the applicants, with Ruslan Magomadov and other relatives, were at home at 179 Kluchevaya Street, in Grozny, Chechnya. The household consisted of three dwellings; one of them was occupied by the first applicant, another by Ruslan Magomadov and his family and the third by his brother and his family. The applicants’ house was near a Russian military checkpoint.

9.  At about 4.30 a.m. a group of about thirty armed men in camouflage uniform rushed into the applicants’ yard. They broke into two groups. One group went into the first applicant’s part of the house and the other one went into the part occupied by Ruslan Magomadov and his family.

10.  Those intruders who were not wearing masks had a Slavic appearance. The men neither introduced themselves nor produced any documents. They spoke Russian without an accent. The applicants thought that they were Russian military servicemen.

11.  The servicemen pointed their guns at the applicants and ordered them not to move. About ten of the intruders went into Ruslan Magomadov’s part of the house. They shouted and swore at the applicants and ordered everyone not to move. When the second applicant asked them what was going on, she and her children were forced to go into another room, where some of the servicemen put their guns to the applicants’ heads and ordered them to lie on the floor.

12.  The rest of the servicemen threw Ruslan Magomadov on to the floor, bound his hands, placed a pillowcase over his head, bound it with adhesive tape and took him outside. Ruslan Magomadov was barefoot and in his underwear.

13.  The servicemen did not ask for Ruslan Magomadov’s identity documents. They searched the house and took his service gun, a hunting rifle and a folder with official papers which he had brought home from work.

14.  After that the servicemen placed Ruslan Magomadov in one of the two APCs (armoured personnel carriers) which were parked next to the applicants’ house and took him away.

15.  According to the applicants, some time later the local military commander told them that representatives of the Main Intelligence Department of the Ministry of Defence, the Ministry of the Interior (the MVD) and the Federal Security Service (the FSB) had requested to be provided with unopposed passage through the checkpoint near the applicants’ house on the night of 9 February 2003.

16.  The applicants have had no news of Ruslan Magomadov since 9 February 2003.

17.  In support of their statements the applicants submitted the following: an account by the second applicant given on 13 April 2005, an account by the applicants’ neighbour Ms I. given on 15 April 2005, an account by the first applicant given on 16 April 2005, an account given by the applicants’ neighbour Mr N. on 13 September 2005 and a character reference for Ruslan Magomadov by the Chechnya MVD, dated 19 February 2004.

2.  Information submitted by the Government

18.  The Government did not challenge most of the account given by the applicants. According to their submission, between 4 a.m. and 5 a.m. on 9 February 2003 a group of about thirty unidentified persons armed with automatic weapons and with the support of two APCs unlawfully broke into the household situated at 179 Kluchevaya Street, Grozny, Chechnya; there, using violent threats, they abducted R. Magomadov and departed to an unknown destination”.

B.  The search for Ruslan Magomadov and the investigation

1.  The applicants’ account

19.  On 9 February 2003 the applicants started their search for Ruslan Magomadov. They contacted, both in person and in writing, various official bodies, such as the President of the Russian Federation, the Chechen administration, military commanders’ offices and prosecutors’ offices at different levels, describing in detail the circumstances of their relative’s abduction and asking for assistance in establishing his whereabouts. The applicants retained copies of a number of those letters and submitted them to the Court.

20.  On 9 February 2003 the Grozny prosecutor’s office instituted an investigation into the disappearance of Ruslan Magomadov under Article 126 § 2 of the Criminal Code (aggravated kidnapping). The case file was given the number 50010. Some time later the investigation of the criminal case was transferred to the Staropromyslovskiy district prosecutor’s office of Grozny (the district prosecutor’s office).

21.  On 4 February 2004 the district prosecutor’s office informed the fifth applicant that they had not established the identity of the perpetrators of her brother’s abduction.

22.  On 11 February, 27 March 2004 and 19 April 2005 the military prosecutor’s office of the United Group Alignment (the prosecutor’s office of the UGA) forwarded the first applicant’s requests for assistance in the search for her son to the military prosecutor’s office of military unit no. 20102.

23.  On 19 February 2004 the military prosecutor’s office of military unit no. 20102 forwarded the first applicant’s request to the military prosecutor’s office of military unit no. 20116.

24.  On 25 February 2004 the information centre of the Chechnya Ministry of the Interior informed the first applicant that no information was available about her son’s detention.

25.  On 3 March 2004 the district prosecutor’s office informed the first applicant that her request for assistance in establishing the whereabouts of Ruslan Magomadov had been included in the criminal case file.

26.  On 4 March and 12 April 2004 the Main Department of the Ministry of the Interior in the Southern Federal Circuit forwarded the first applicant’s requests to its operational search division in Grozny and the Chechnya prosecutor’s office respectively.

27.  On 5 March, 22 April and 1 June 2004 and 9 June 2005 the Chechnya prosecutor’s office forwarded the first applicant’s requests to the district prosecutor’s office.

28.  On 31 March 2004 the military prosecutor’s office of military unit no. 20116 informed the first applicant that at her request they had examined the theory of the possible involvement of Russian military servicemen in the abduction of her son and that this theory had not been confirmed.

29.  On 23 April 2004 detention centre no. 2 of the Department of Corrections of the Ministry of Justice in the Stavropol region informed the fifth applicant that Ruslan Magomadov was not listed among their detainees.

30.  On 26 April 2004 the military prosecutor’s office of military unit no. 20116 informed a number of State authorities, including the Chechnya prosecutor’s office, that the involvement of Russian military forces in the disappearance of Ruslan Magomadov had not been confirmed.

31.  On 26 April 2004 the district prosecutor’s office informed the first applicant that the investigation in the criminal case had been resumed on 29 March 2003 and that it had been suspended on 9 April 2003 for failure to establish the identities of the perpetrators.

32.  On 7 May 2004 the Chechnya military commander forwarded the first applicant’s request for assistance in the search for her son to the Chechnya prosecutor’s office. According to the letter, the first applicant complained about the abduction and stated that the abductors had arrived in APCs and that they had taken away Ruslan Magomadov’s service weapon and hunting rifle.

33.  On 4 June 2004 the Chechnya prosecutor’s office informed the first applicant that on 9 February 2003 the district prosecutor’s office had instituted an investigation into the abduction of Ruslan Magomadov.

34.  On 5 June 2004 the Main Department of the Ministry of the Interior in the Southern Federal Circuit informed the first applicant that its Department of Counterterrorist Operations had not abducted Ruslan Magomadov.

35.  On 17 June 2004 the military prosecutor’s office of the UGA informed the first applicant that information concerning the investigation into the abduction of Ruslan Magomadov was available at the Chechnya prosecutor’s office.

36.  On 2 July 2004 the district prosecutor’s office informed the first applicant that on an unspecified date they had resumed the investigation in the criminal case.

37.  On 5 July 2004 the Chechnya prosecutor’s office informed the first applicant that information about the criminal investigation was available at the district prosecutor’s office.

38.  In July 2004 the district prosecutor’s office informed the first applicant that on an unspecified date they had suspended the investigation in the criminal case.

39.  On 10 August 2004 the military prosecutor’s office of military unit no. 20102 informed a number of State authorities, including the Chechnya prosecutor’s office, that the theory of the involvement of Russian military forces in the abduction of Ruslan Magomadov had not been confirmed.

40.  On 31 August 2004 the Chechnya prosecutor’s office forwarded the first applicant’s request for assistance in the search for her son to the district prosecutor’s office.

41.  On 30 September 2004 the district prosecutor’s office informed the first applicant that her request had been included in the criminal case file materials and that they were taking operational search measures to establish the identity of the perpetrators.

42.  On 1 February 2005 the first applicant wrote to the Chechnya military commander. She complained about her son’s abduction and stated that the intruders had taken his service weapon, a hunting rifle and a folder of official papers. She also pointed out that although the criminal investigation into the abduction had been instituted on 9 February 2003, for two years the authorities had failed to establish the whereabouts of Ruslan Magomadov.

43.  On 16 February 2005 the fifth applicant requested the district prosecutor’s office to inform her about the progress in the investigation of criminal case no. 50010.

44.  On 18 February 2005 the fifth applicant requested the district prosecutor’s office to resume the investigation in the criminal case.

45.  On 24 February 2005 the district prosecutor’s office informed the fifth applicant that the investigation in the criminal case had been resumed on 22 February 2005.

46.  On 22 April 2005 the military prosecutor’s office of military unit no. 20102 informed the first applicant that the theory of the involvement of Russian military forces in the abduction of Ruslan Magomadov had not been confirmed.

47.  On 18 May 2005 the Chechnya prosecutor’s office informed the first applicant that the district prosecutor’s office was conducting an investigation into her son’s disappearance.

48.  On 20 May 2005 the district prosecutor’s office informed the fifth applicant that the investigation in criminal case no. 50010 had been resumed on 22 February 2005.

49.  On an unspecified date the second applicant was granted victim status in criminal case no. 50010.

2.  Information submitted by the Government

50.  The Government submitted that on 9 February 2003, upon a complaint by the second applicant about the abduction of Ruslan Magomadov, the Grozny prosecutor’s office had instituted a criminal investigation into the abduction under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file had been given number 50010. On the same day the authorities also opened criminal case no. 42019 in connection with the theft of Ruslan Magomadov’s service weapon. Some time later the investigation of these two cases was joined into one investigation in criminal case no. 50010.

51.  On 9 February and 31 March 2003 the investigators questioned the second applicant and granted her victim status on the latter date. She stated that since 2001 her husband had been working in the investigations department of the Shatoy ROVD. At about 4.30 a.m. on 9 February 2003 the family was sleeping in their house at 179 Kluchevaya Street. She was woken by a noise in the yard and saw about ten or twelve armed men in multicoloured military uniform, high boots and black masks. All these men were armed with typical submachine guns. They ordered her to stay in bed. The men acted in silence; only one of them was swearing and speaking unaccented Russian. The intruders threw her husband on to the floor and tied his hands behind his back with adhesive tape. After that they asked the applicant whether there was a balaclava mask in the house. When she replied in the negative, they took a pillowcase, put it over her husband’s head and wrapped adhesive tape around it. After that they took Ruslan Magomadov outside; he was barefoot and in his underwear. They ordered the second applicant to stay inside. However, after the intruders had gone outside, she ran out into the street and saw two APCs driving away in different directions. One of the APCs drove into Kluchevaya Street, the other one went off in the direction of the Staropromyslovskiy autoroute. At least fifteen armed men in camouflage uniform and masks were sitting on each of the APCs. As it was dark, the witness could not see whether there were any identifying marks on the vehicles. According to the second applicant, her relatives, who had been made to stay indoors, also saw the abductors driving away. The intruders had also taken away Ruslan Magomadov’s service weapon, his double-barrelled hunting rifle, a black leather folder with documents from his work, prayer beads, a skullcap and 1,500 roubles.  On 29 March 2004 the second applicant was questioned again. Her statement was similar to the ones given on 9 February and 31 March 2003.

52.  On 9 February and 31 March 2003 the investigators questioned Ruslan Magomadov’s brother, Mr Kh.M., who stated that their family household consisted of two houses in one yard. Ruslan Magomadov and his family lived in one house and the witness and his mother (the first applicant) in the other. At about 4.30 a.m. on 9 February 2003 the witness was woken up by his mother’s screaming. When he walked out of the room, several men in camouflage uniform and masks pointed their guns at him. They told him that it was a regular identity check. After that they checked his passport and went outside. He followed them and saw two APCs driving away from the house in different directions. One of them drove away along Kluchevaya Street and the other departed in the direction of a local store. According to the witness, after he had returned home his sister-in-law (the second applicant) informed him that his brother Ruslan Magomadov had been taken away and that the abductors had also taken away his brother’s service weapon, a hunting rifle and a folder with documents.

53.  On 9 February 2003 the investigators also questioned the applicants’ neighbour, Mr A.N., who stated that at about 4.30 a.m. on 9 February 2003 he had woken up and heard the noise of engines. Across the street from his house he saw an APC and men standing next to it. The men were speaking rudely in Russian. The next morning he found out from his neighbours about Ruslan Magomadov’s abduction.

54.  On 20 February 2003 the Chechnya Ministry of the Interior conducted an inquiry into the abduction of Ruslan Magomadov. As a result it was established that he had indeed been abducted by unidentified persons.

55.  On 29 March 2004 the investigators questioned the fifth applicant, who stated that on 9 February 2003 she had been at home when her daughter, who had stayed that night at the house of the first applicant, informed her about the abduction of Ruslan Magomadov. After that the witness had gone to her mother’s house in Kluchevaya Street. There the first applicant and Mr Kh.M. told her that at about 4.30 a.m. armed men in two APCs had arrived at the house. The men were wearing masks and camouflage uniform without any insignia or attributes. The intruders had proceeded into Ruslan Magomadov’s bedroom, and without introducing themselves dragged him out of bed. Then they asked the second applicant whether there was a balaclava mask in the house. When the second applicant told them that there was none, they took a pillowcase, put it over Ruslan Magomadov’s head and tied his hands with adhesive tape. According to the witness, her brother had no unpaid debts.

56.  On 20 April 2005 (in the submitted documents the date was also referred to as 31 March 2003) the first applicant was granted victim status in the criminal case and questioned. According to the witness, on 9 February 2003 she, her son Ruslan Magomadov and other relatives had been sleeping at home. At about 4.30 a.m. she had heard a noise in the yard. When the applicant had tried to open the entrance door, a man had pointed his gun at her and ordered her to stay in the house. From the window she saw armed men entering her son’s house, which was situated across from her house in the same yard. According to the applicant, the intruders, a group of ten to fifteen military servicemen in masks, spoke Russian among themselves. They had spent about ten to fifteen minutes in Ruslan Magomadov’s house. After they had left, the first applicant found out from the second applicant that the men had taken away Ruslan Magomadov. The next morning the applicant had learnt that these men had arrived in two APCs and entered their yard by getting over the fence between the applicants’ and one of their neighbours’ yards.

57.  On 29 May and in July 2004 the investigation in the criminal case was suspended for failure to establish the identity of the perpetrators. The applicants were informed about these decisions.

58.  On 2 July 2004 the investigation in the criminal case was resumed. The applicants were informed about it on the same date.

59.  On 19 and 21 November 2005 the investigators questioned the applicants’ neighbours, Mrs M.B. and Mr Kh.E., who provided similar statements. According to the witnesses, they had not witnessed the events, but on the morning of 9 February 2003 they had found out from their neighbours that at about 4 a.m. on 9 February 2003 unidentified armed men, arriving in a Ural vehicle, had abducted their neighbour Ruslan Magomadov.

60.  On 7 December 2005, 6 April and 2 July 2007 the investigators informed the applicants that the investigation in the criminal case had been suspended.

61.  On 6 September 2007 the investigation of criminal case no. 50010 was transferred to the Leninskiy inter-district investigations department of Grozny.

62.  On 27 September 2007 the investigators questioned the applicants’ neighbour, Mr S.I., who stated that he had learnt from his acquaintances that at about 4 a.m. on 9 February 2003 his neighbour Ruslan had been abducted from his house by unidentified armed men in camouflage uniform who had arrived in APCs.

63.  On 29 September 2007 the investigators questioned the applicants’ neighbour, Mrs Kh.M., who stated that at about 5 a.m. on 9 February 2003 she had been woken by screaming and crying outside. She had gone out into the street and next to the Magomadovs’ house she had been told that a group of unidentified armed men in camouflage uniform had broken into the house and taken away Ruslan Magomadov.

64.  On 4 October and 24 November 2007 the investigators informed the applicants that the investigation in the criminal case had been suspended for failure to establish the identity of the perpetrators.

65.  On 4 February 2008 the investigators informed the applicants that the investigation in the criminal case had been resumed.

66.  On 7 February 2008 the investigators questioned Ruslan Magomadov’s former colleague, Mr U.A., who stated that between 1996 and 1999 Ruslan Magomadov had worked as the head of the operational division in the Staropromyslovskiy ROVD and after that he had worked as a senior investigator at the Shatoy ROVD. At the beginning of February 2003 the Staropromyslovskiy ROVD had received a complaint from Ruslan Magomadov’s relatives that he had been abducted from his own house.

67.  On 4 March 2008 the investigators informed the applicants that the investigation in the criminal case had been suspended for failure to establish the identity of the perpetrators.

68.  On 9 April 2008 the investigators informed the applicants that the investigation in the criminal case had been resumed.

69.  On an unspecified date the investigators conducted a crime scene examination at the applicants’ house. No evidence was found or collected.

70.  On an unspecified date the investigators requested no. 2 Operational Search Bureau of the Chechnya Ministry of the Interior to conduct operational search measures aimed, inter alia, at establishing the identity of eyewitnesses to the abduction who had seen the abductors’ armoured vehicles.

71.  According to the Government, the investigators also requested information from various State authorities about the disappearance. On various dates these authorities, including the district offices of the FSB and the military prosecutors’ office, stated that they had not detained Ruslan Magomadov or carried out a criminal investigation into his activities. Also on unspecified dates a number of the district departments of the interior in Chechnya informed the investigation that they had never detained or delivered Ruslan Magomadov to a temporary detention facility. On unspecified dates the remand centres in Chechnya and the neighbouring regions informed the investigation that the missing man had never been detained on their premises. According to the responses from the Chechnya military commanders’ office and a number of the district military commanders’ offices located in the Republic, the previously acting military commanders’ offices had been disbanded in July 2003 and no information was available about special operations conducted by these offices prior to July 2003.

72.  The Government submitted that the investigation was checking several theories concerning the abduction of Ruslan Magomadov: firstly that his abduction had been committed by Russian military servicemen; secondly that it had been perpetrated by persons to whom Ruslan Magomadov owed money; thirdly that his abductors were members of illegal armed groups; and fourthly that his abduction had been carried out for a ransom.

73.  The investigation failed to establish the whereabouts of Ruslan Magomadov. The investigating authorities sent requests for information to the competent State agencies and took other steps to have the crime resolved. The investigation found no evidence to support the involvement of federal forces in the crime. The law enforcement authorities of Chechnya had never arrested or detained Ruslan Magomadov on criminal or administrative charges and had not carried out a criminal investigation in his respect.

74.  In response to the Court’s request, the Government submitted several documents from the investigation file, running to fifty-seven pages. The Government requested the Court to apply Rule 33 § 3 of the Rules of Court concerning confidentiality of the submitted documents and to restrict public access to the submitted documentation. In their request the Government stated that the criminal investigation was still in progress and that public disclosure of the documents could be detrimental to the interests of participants in the criminal proceedings.

75.  The Government further stated that a copy of the entire investigation file could not be submitted to the Court owing to the absence of any guarantees on the part of the Court of non-disclosure of the secret data contained in the investigation file. In this respect the Government referred to Article 161 of the Criminal Procedure Code, since the file contained information concerning participants in criminal proceedings. They also cited, by way of comparison, the Rome Statute of the International Criminal Court of 17 July 1998 (Articles 70 and 72) and the Statute of the International Criminal Tribunal for the former Yugoslavia (Articles 15 and 22) and argued that these instruments provided for personal responsibility for a breach of the rules of confidentiality.

II.  RELEVANT DOMESTIC LAW

76. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).

THE LAW

I.  THE GOVERNMENT’S OBJECTION REGARDING NON-EXHAUSTION OF DOMESTIC REMEDIES

A.  The parties’ submissions

77.  The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into the disappearance of Ruslan Magomadov had not yet been completed.

78.  The applicants contested that objection. They stated that the criminal investigation had proved to be ineffective. Referring to other cases concerning such crimes reviewed by the Court, they also alleged that the existence of an administrative practice of non-investigation of crimes committed by State servicemen in Chechnya rendered any potentially effective remedies inadequate and illusory in their case.

B.  The Court’s assessment

79.  The Court will examine the arguments of the parties in the light of the provisions of the Convention and its relevant practice (for a relevant summary, see Estamirov and Others v. Russia, no. 60272/00, §§ 73-74, 12 October 2006).

80.  As regards criminal law remedies provided for by the Russian legal system, the Court observes that the applicants complained to the law enforcement authorities immediately after the kidnapping of Ruslan Magomadov and that an investigation has been pending since 9 February 2003. The applicants and the Government dispute the effectiveness of the investigation of the kidnapping.

81.  The Court considers that the Government’s objection raises issues concerning the effectiveness of the investigation which are closely linked to the merits of the applicants’ complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below.

II.  THE COURT’S ASSESSMENT OF THE EVIDENCE AND THE ESTABLISHMENT OF THE FACTS

A.  The parties’ arguments

82.  The applicants maintained that it was beyond reasonable doubt that the men who had taken away Ruslan Magomadov were State agents. In support of their complaint they referred to the following facts. At the material time Grozny had been under the total control of federal troops. There had been Russian military checkpoints on the roads leading to and from the town. The abduction had been carried out in the vicinity of a Russian federal forces checkpoint. The armed men who had abducted Ruslan Magomadov spoke Russian without an accent, which proved that they were not of Chechen origin. The men had arrived in military vehicles late at night, which indicated that they had been able to circulate freely past curfew. The men acted like a well-organised group, in a manner similar to that of special forces carrying out identity checks. They were wearing a specific camouflage uniform and were armed. Since Ruslan Magomadov had been missing for a very lengthy period, he could be presumed dead. That presumption was further supported by the circumstances in which he had been arrested, which should be recognised as life-threatening.

83.  The Government submitted that unidentified armed men had kidnapped Ruslan Magomadov. They further contended that an investigation of the incident was pending, that there was no evidence that the men were State agents and that there were therefore no grounds for holding the State liable for the alleged violations of the applicants’ rights. They further argued that there was no convincing evidence that the applicants’ relative was dead and that he had not been officially declared a deceased person. The Government asserted that the crime could have been attributable to illegal armed groups and that a considerable number of armaments and APCs had been stolen from Russian arsenals by insurgents in the 1990s and that members of illegal armed groups could have possessed camouflage uniforms and service identification documents. The Government also pointed out that Ruslan Magomadov had worked as a police officer, and if the authorities were to arrest him they would have used other means than abduction in an APC. The Government also raised a number of objections to the applicants’ presentation of the facts. The fact that the perpetrators of the abduction spoke unaccented Russian and were wearing camouflage uniforms did not mean that these men could not have been members of illegal armed groups or criminals pursuing a blood feud. The Government further alleged that the applicants’ description of the circumstances surrounding the abduction was inconsistent. In particular, the applicants alleged that the abductors had arrived in APCs, whereas two of their neighbours had mentioned that Ural vehicles had been involved in the events; the applicants’ neighbours had not mentioned to the investigators that their yards had been used by the abductors to get into the applicants’ household; the applicant had not informed the investigators about the permission to pass through the checkpoints on the night of 9 February 2003 allegedly given by the military commander to representatives of law-enforcement agencies.

B.  The Court’s evaluation of the facts

84.  The Court observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of disappearance under Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-109, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, § 161, Series A no. 25).

85.  The Court notes that despite its requests for a copy of the investigation file into the abduction of Ruslan Magomadov, the Government produced only a few documents from the case file. The Government referred to Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has already found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006- … (extracts)).

86.  In view of this, and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government’s conduct in respect of the well-foundedness of the applicants’ allegations. The Court will thus proceed to examine crucial elements in the present case that should be taken into account when deciding whether the applicants’ relative can be presumed dead and whether his death can be attributed to the authorities.

87.  The applicants alleged that the persons who had taken Ruslan Magomadov away on 9 February 2003 and then killed him were State agents.

88.  The Government suggested in their submissions that State authorities would not have used an APC to kidnap a police officer and that the abductors of Ruslan Magomadov must have been members of paramilitary groups or criminals pursuing mercenary goals. The Court observes that the Governments’ allegation in this respect was not specific and that their submissions did not contain any indications whatsoever that the domestic investigation had found any evidence demonstrating the involvement of insurgents or criminals in the abduction of Ruslan Magomadov. The Court takes note of the Government’s allegation that the military vehicles, firearms and camouflage uniforms had probably been stolen by insurgents from Russian arsenals in the 1990s. Nevertheless, it considers it very unlikely that several military vehicles, whether APCs or Ural vehicles, unlawfully possessed by members of illegal armed groups, could have moved freely through Russian military checkpoints without being noticed. Nor is it persuaded by the Government’s unexplained assertion that a police officer could not have been arrested using an APC. The Court would stress in this regard that the evaluation of the evidence and the establishment of the facts is a matter for the Court, and it is incumbent on it to decide on the evidentiary value of the documents submitted to it (see Çelikbilek v. Turkey, no. 27693/95, § 71, 31 May 2005).

89.  The Court notes that the applicants’ allegation is supported by the witness statements collected by the applicants and by the investigation. It finds that the fact that a large group of armed men in uniform during curfew hours, equipped with military vehicles, was able to move freely through military roadblocks during curfew hours and proceeded to check identity documents and abduct a police officer from his home strongly supports the applicants’ allegation that these were State servicemen conducting a security operation. As can be seen from the Government’s submission, in their witness statements provided to the investigation after the abduction of Ruslan Magomadov the applicants had stated that he had been detained by unknown servicemen (see paragraph 56) or by persons in military uniforms (see paragraph 51 above); the domestic investigation also accepted the assumptions presented by the applicants (see paragraph 18 above).

90.  The Government questioned the credibility of the applicants’ statements in view of certain discrepancies relating to the exact circumstances of the abduction as described by the applicants and by their neighbours. The Court notes in this respect that no other elements underlying the applicants’ submissions of facts have been disputed by the Government. The Court notes that from the very beginning of the investigation the applicants, as well as their relatives, as eyewitnesses to the events, had been consistent in their witness statements concerning the involvement of the APCs; whereas the statements of the two neighbours, who had not witnessed the events and received the information about the involvement of Ural vehicles from a third party, had been obtained by the investigation almost three years after the abduction. In the Court’s view, such discrepancies do not in themselves suffice to cast doubt on the overall veracity of the applicants’ statements.

91.  The Court observes that where the applicants make out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of relevant documents, it is for the Government to argue conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-II).

92.  Taking into account the above elements, the Court is satisfied that the applicants have made a prima facie case that their relative was abducted by State servicemen. The Government’s statement that the investigators had not found any evidence to support the involvement of the special forces in the kidnapping is insufficient to discharge them from the above-mentioned burden of proof. Having examined the documents submitted by the parties, and drawing inferences from the Government’s failure to submit the remaining documents which were in their exclusive possession or to provide another plausible explanation for the events in question, the Court finds that Ruslan Magomadov was arrested on 9 February 2003 by State servicemen during an unacknowledged security operation.

93.  There has been no reliable news of Ruslan Magomadov since the date of the kidnapping. His name has not been found in any official detention facility records. Finally, the Government have not submitted any explanation as to what happened to him after his arrest.

94.  Having regard to the previous cases concerning disappearances in Chechnya which have come before it (see, among others, Bazorkina, cited above; Imakayeva, cited above; Luluyev and Others v. Russia, no. 69480/01, ECHR 2006-… (extracts); Baysayeva v. Russia, no. 74237/01, 5 April 2007; Akhmadova and Sadulayeva, cited above; and Alikhadzhiyeva v. Russia, no. 68007/01, 5 July 2007), the Court finds that in the context of the conflict in the Republic, when a person is detained by unidentified servicemen without any subsequent acknowledgment of the detention, this can be regarded as life-threatening. The absence of Ruslan Magomadov or of any news of him for several years supports this assumption.

95.  Accordingly, the Court finds that the evidence available permits it to establish that Ruslan Magomadov must be presumed dead following his unacknowledged detention by State servicemen.

III. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

96.  The applicants complained under Article 2 of the Convention that their relative had been deprived of his life by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. Article 2 reads:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

A.  The parties’ submissions

97.  The Government contended that the domestic investigation had obtained no evidence to the effect that Ruslan Magomadov was dead or that any servicemen of the federal law-enforcement agencies had been involved in his kidnapping or alleged killing. They claimed that the investigation into the kidnapping of the applicants’ relative met the Convention requirement of effectiveness, as all measures available under national law were being taken to identify those responsible. They pointed out that the investigation into the abduction had been commenced on the first day after the applicants’ complaint about it and that the applicants had failed to indicate which measures had not been taken by the investigators.

98.  The applicants argued that Ruslan Magomadov had been detained by State servicemen and should be presumed dead in the absence of any reliable news of him for several years. The applicants also argued that the investigation had not met the effectiveness and adequacy requirements laid down by the Court’s case-law. The applicants pointed out that by April 2005 the investigators had failed to question the first applicant who had witnessed the events; that in spite of credible reports concerning the involvement of APCs and state agents in the disappearance, the investigators had failed to question any representatives of local law-enforcement and military agencies about their possible involvement in the events. They further contended that even though the investigation into Ruslan Magomadov’s kidnapping had been opened immediately after the events, it had then been suspended and resumed a number of times – thus delaying the taking of the most basic steps – and that the relatives had not been properly informed of the most important investigative measures. The fact that the investigation had been pending for more than five and a half years without producing any known results was further proof of its ineffectiveness. They also invited the Court to draw conclusions from the Government’s unjustified failure to submit the documents from the case file to them or to the Court.

B.  The Court’s assessment

1.  Admissibility

99.  The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of domestic remedies should be joined to the merits of the complaint (see paragraph 81 above). The complaint under Article 2 of the Convention must therefore be declared admissible.

2.  Merits

(a)  The alleged violation of the right to life of Ruslan Magomadov

100.  The Court has already found that the applicants’ relative must be presumed dead following unacknowledged detention by State servicemen. In the absence of any justification put forward by the Government, the Court finds that his death can be attributed to the State and that there has been a violation of Article 2 in respect of Ruslan Magomadov.

(b)  The alleged inadequacy of the investigation of the kidnapping

101.  The Court has on many occasions stated that the obligation to protect the right to life under Article 2 of the Convention also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. It has developed a number of guiding principles to be followed for an investigation to comply with the Convention’s requirements (for a summary of these principles see Bazorkina, cited above, §§ 117-119).

102.  In the present case, the kidnapping of Ruslan Magomadov was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

103.  The Court notes at the outset that most of the documents from the investigation were not disclosed by the Government. It therefore has to assess the effectiveness of the investigation on the basis of the few documents submitted by the parties and the information about its progress presented by the Government.

104.  The Court notes that the authorities were immediately made aware of the crime by the applicants’ submissions. The investigation in case no. 50010 was instituted on 9 February 2003, that is immediately after Ruslan Magomadov’s abduction. The Court observes that several witnesses were questioned by the investigation shortly after the opening of the criminal proceedings. However, in spite of the information provided by these witness statements, including information concerning the involvement of APCs in the abduction, the investigators had failed to verify it by taking immediate investigative measures such as questioning representatives of local law-enforcement agencies and military structures about their possible involvement in the abduction or establishing the identity of the owners of the APCs and questioning them about their possible involvement in the events. Such a postponement per se was liable to affect the investigation of the kidnapping in life-threatening circumstances, where crucial action has to be taken in the first days after the event. It is obvious that these investigative measures, if they were to produce any meaningful results, should have been taken immediately after the authorities received such information. Such delays, for which there has been no explanation in the instant case, not only demonstrate the authorities’ failure to act of their own motion but also constitute a breach of the obligation to exercise exemplary diligence and promptness in dealing with such a serious crime (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 86, ECHR 2002-II)

105.  A number of other essential steps were never taken. Most notably, it does not appear that the investigation tried to identify and question the servicemen who had been manning the checkpoint in the vicinity of the applicants’ house or that they tried to examine the registration log of the passage of vehicles through the roadblock on 9 February 2003 and the permissions given by the authorities to drive around the area on the night in question.

106.  The Court also notes that even though the first and second applicants were granted victim status in the investigation concerning the abduction of their relative, they were only informed of the suspension and resumption of the proceedings, and not of any other significant developments. Accordingly, the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings.

107.  Finally, the Court notes that the investigation was adjourned and resumed on numerous occasions and that there were lengthy periods of inactivity on the part of the prosecutor’s office when no proceedings were pending.

108. Having regard to the limb of the Government’s preliminary objection that was joined to the merits of the complaint, inasmuch as it concerns the fact that the domestic investigation is still pending, the Court notes that the investigation, having being repeatedly suspended and resumed and plagued by inexplicable delays, has been pending for many years without producing any tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and dismisses their preliminary objection.

109.  In the light of the foregoing, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Ruslan Magomadov, in breach of Article 2 in its procedural aspect.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

110.  The applicants relied on Article 3 of the Convention, submitting that as a result of their relative’s disappearance and the State’s failure to investigate it properly they had endured mental suffering in breach of Article 3 of the Convention. Article 3 reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  The parties’ submissions

111.  The Government disagreed with these allegations and argued that the investigation had not established that the applicants had been subjected to inhuman or degrading treatment prohibited by Article 3 of the Convention.

112.  The applicants maintained their submissions.

B.  The Court’s assessment

1.  Admissibility

113.  The Court notes that this complaint under Article 3 of the Convention is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

114.  The Court has found on many occasions that in a situation of enforced disappearance close relatives of the victim may themselves be victims of treatment in violation of Article 3. The essence of such a violation does not mainly lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva, cited above, § 164).

115.  In the present case the Court notes that the applicants are close relatives of the disappeared person who either witnessed his abduction or were involved in searching for him. For more than five and a half years they have not had any news of the missing man. During this period the applicants have made enquiries of various official bodies, both in writing and in person, about their missing relative. Despite their attempts, the applicants have never received any plausible explanation or information about what became of Ruslan Magomadov following his detention. The responses they received mostly denied State responsibility for their relative’s arrest or simply informed them that the investigation was ongoing. The Court’s findings under the procedural aspect of Article 2 are also of direct relevance here.

116.  The Court therefore concludes that there has been a violation of Article 3 of the Convention in respect of the applicants.

V.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

117.  The applicants further stated that Ruslan Magomadov had been detained in violation of the guarantees contained in Article 5 of the Convention, which reads, in so far as relevant:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:…

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

…

2.  Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A.  The parties’ submissions

118.  The Government asserted that no evidence had been obtained by the investigators to confirm that Ruslan Magomadov had been deprived of his liberty. He was not listed among the persons kept in detention centres and none of the regional law-enforcement agencies had information about his detention.

119.  The applicants reiterated the complaint.

B.  The Court’s assessment

1.  Admissibility

120.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that the complaint is not inadmissible on any other grounds and must therefore be declared admissible.

2.  Merits

121.  The Court has previously noted the fundamental importance of the guarantees contained in Article 5 to secure the right of individuals in a democracy to be free from arbitrary detention. It has also stated that unacknowledged detention is a complete negation of these guarantees and discloses a very grave violation of Article 5 (see Çiçek v. Turkey, no. 25704/94, § 164, 27 February 2001, and Luluyev, cited above, § 122).

122.  The Court has found that Ruslan Magomadov was abducted by State servicemen on 9 February 2003 and has not been seen since. His detention was not acknowledged, was not logged in any custody records and there exists no official trace of his subsequent whereabouts or fate. In accordance with the Court’s practice, this fact in itself must be considered a most serious failing, since it enables those responsible for an act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of a detainee. Furthermore, the absence of detention records noting such matters as the date, time and location of detention and the name of the detainee, as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Article 5 of the Convention (see Orhan, cited above, § 371).

123.  The Court further considers that the authorities should have been more alert to the need for a thorough and prompt investigation of the applicants’ complaints that their relative had been detained and taken away in life-threatening circumstances. However, the Court’s findings above in relation to Article 2 and, in particular, the conduct of the investigation, leave no doubt that the authorities failed to take prompt and effective measures to safeguard him against the risk of disappearance.

124.  In view of the foregoing, the Court finds that Ruslan Magomadov was held in unacknowledged detention without any of the safeguards contained in Article 5. This constitutes a particularly grave violation of the right to liberty and security enshrined in Article 5 of the Convention.

VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

125.  The applicants complained that they had been deprived of effective remedies in respect of the aforementioned violations, contrary to Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A.  The parties’ submissions

126.  The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them. The applicants had had an opportunity to challenge the acts or omissions of the investigating authorities in court. The Government also stated that participants in criminal proceedings could also claim damages in civil proceedings and referred to a case where victims in criminal proceedings had been awarded damages from the prosecutor’s office. In sum, the Government submitted that there had been no violation of Article 13.

127.  The applicants reiterated the complaint.

B.  The Court’s assessment

1.  Admissibility

128.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

129.  The Court reiterates that in circumstances where, as here, a criminal investigation into the disappearance has been ineffective and the effectiveness of any other remedy that might have existed, including civil remedies suggested by the Government, has consequently been undermined, the State has failed in its obligation under Article 13 of the Convention (see Khashiyev and Akayeva, cited above, § 183).

130.  Consequently, there has been a violation of Article 13 in conjunction with Article 2 of the Convention.

131. As regards the applicants’ reference to Articles 3 and 5 of the Convention, the Court considers that in the circumstances no separate issue arises in respect of Article 13, read in conjunction with Articles 3 and 5 of the Convention (see Kukayev v. Russia, no. 29361/02, § 119, 15 November 2007, and Aziyevy v. Russia, no. 77626/01, § 118, 20 March 2008).

VII.  ALLEGED VIOLATIONS OF ARTICLES 8 AND 14 OF THE CONVENTION

132.  In their initial application form the applicants complained under Article 8 that their household had been searched unlawfully on the night of their relative’s abduction and under Article 14 they alleged that they had been discriminated against on the grounds of their ethnic origin.

133.  Article 8 of the Convention, in so far as relevant, provides:

“1. Everyone has the right to respect for his … his home …

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14 of the Convention provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

134.  In their observations on admissibility and merits of the application the applicants stated that they no longer wished their complaints under Articles 8 and 14 of the Convention to be examined.

135.  The Court, having regard to Article 37 of the Convention, finds that the applicants do not intend to pursue this part of the application, within the meaning of Article 37 § 1 (a). The Court also finds no reasons of a general character affecting respect for human rights as defined in the Convention which require further examination of the present complaints by virtue of Article 37 § 1 of the Convention in fine (see, for example, Chojak v. Poland, no. 32220/96, Commission decision of 23 April 1998; Singh and Others v. the United Kingdom (dec.), no. 30024/96, 26 September 2000; and Stamatios Karagiannis v. Greece, no. 27806/02, § 28, 10 February 2005).

136.  It follows that this part of the application must be struck out in accordance with Article 37 § 1 (a) of the Convention.

VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

137.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Pecuniary damage

138.  The applicants claimed damages in respect of loss of earnings by their relative after his arrests and subsequent disappearance. The first applicant, as the mother of Ruslan Magomadov, claimed 247,505 Russian roubles (RUB) (7,071 euros (EUR)) under this head; the second applicant, as his wife, claimed RUB 495,010 (EUR 14,143); the third and the fourth applicants, as his daughter and son, claimed RUB 158,555 (EUR 4,530) and RUB 188,847 (EUR 5, 395) respectively. The first, second, third and fourth applicants claimed a total of RUB 1,089,917 under this head (EUR 31,140).

139.  They claimed that Ruslan Magomadov had been employed as a senior police officer for an annual wage of RUB 111,993 (EUR 3,200). They provided a certificate from the Chechnya Ministry of the Interior confirming the amount of his wages. They submitted that they were financially dependent on their close relative and would have benefited from his financial support in the above amounts. Their calculations were based on the provisions of the Russian Code of Civil Procedure and the actuarial tables for use in personal injury and fatal accident cases published by the United Kingdom Government Actuary’s Department in 2007 (“Ogden tables”).

140.  The Government regarded these claims as based on supposition and unfounded. In particular, they noted that the applicants had never claimed compensation for the loss of the family breadwinner, although such a possibility was provided for in domestic legislation.

141.  The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention, and that this may, where appropriate, entail compensation in respect of loss of earnings. Furthermore, under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”.  Having regard to its above conclusions, the Court finds that there is a direct causal link between the violation of Article 2 in respect of Ruslan Magomadov and the loss by the first, second, third and fourth applicants of the financial support which he could have provided. The Court further notes that the applicants have submitted a certificate confirming the amount of their relative’s earnings and that the Government have not disputed the method of calculation.

142.  Having regard to the applicants’ submissions, the Court awards EUR 7,000 to the first applicant in respect of pecuniary damage, plus any tax that may be chargeable on that amount and EUR 24,000 to the second, third and fourth applicants jointly in respect of pecuniary damage, plus any tax that may be chargeable on that amount.

B. Non-pecuniary damage

143.  The applicants claimed jointly EUR 70,000 in respect of non-pecuniary damage for the suffering they had endured as a result of the loss of their family member, the indifference shown by the authorities towards them and the failure to provide any information about the fate of their close relative.

144.  The Government found the amounts claimed exaggerated.

145.  The Court has found a violation of Articles 2, 5 and 13 of the Convention on account of the unacknowledged detention and disappearance of the applicants’ relative. The applicants themselves have been found to have been victims of a violation of Article 3 of the Convention. The Court thus accepts that they have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It awards to the applicants jointly EUR 35,000 plus any tax that may be chargeable thereon.

C.  Costs and expenses

146.  The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research and interviews in Ingushetia and Moscow at a rate of EUR 50 per hour, and the drafting of legal documents submitted to the Court and the domestic authorities at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for SRJI senior staff and experts. The aggregate claim in respect of costs and expenses related to the applicants’ legal representation amounted to EUR 6,039.

147.  The Government submitted that the applicants were only entitled to reimbursement of costs and expenses that had actually been incurred and were reasonable.had been

148.  The Court has to establish first whether the costs and expenses indicated by the applicants’ representatives were actually incurred and, second, whether they were necessary (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).

149.  Having regard to the details of the information and legal representation contract submitted by the applicants, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives.

150.  Further, as to whether the costs and expenses incurred were necessary, the Court notes that this case was rather complex and required a certain amount of research and preparation. It notes at the same time, that due to the application of Article 29 § 3 in the present case, the applicants’ representatives submitted their observations on admissibility and merits in one set of documents. The Court thus doubts that legal drafting was necessarily time-consuming to the extent claimed by the representatives.

151.  Having regard to the details of the claims submitted by the applicants, the Court awards them EUR 5,500 together with any value-added tax that may be chargeable to the applicants, the net award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicants.

D.  Default interest

152.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (a) of the Convention in so far as it concerns the applicants’ complaints under Articles 8 and 14 of the Convention;

2.  Decides to join to the merits the Government’s objection as to non-exhaustion of domestic remedies and rejects it;

3.  Declares the complaints under Articles 2, 3, 5 and 13 of the Convention admissible;

4.  Holds that there has been a substantive violation of Article 2 of the Convention in respect of Ruslan Magomadov;

5.  Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances in which Ruslan Magomadov disappeared;

6.  Holds that there has been a violation of Article 3 of the Convention in respect of the applicants;

7.  Holds that there has been a violation of Article 5 of the Convention in respect of Ruslan Magomadov;

8.  Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention;

9.  Holds that no separate issues arise under Article 13 of the Convention in respect of the alleged violations of Articles 3 and 5;

10.  Holds

(a)  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the date of settlement, save in the case of the payment in respect of costs and expenses:

(i)  EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of pecuniary damage to the first applicant;

(ii) EUR 24,000 (twenty-four thousand euros) plus any tax that may be chargeable, in respect of pecuniary damage to the second, third and fourth applicants jointly;

(iii) EUR 35,000 (thirty-five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage to the applicants jointly;

(iv) EUR 5,500 (five thousand five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

11.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 17 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen  Christos Rozakis
Registrar President

CASE OF ZABIYEVA AND OTHERS v. RUSSIA

(Application no. 35052/04)

JUDGMENT

STRASBOURG

17 September 2009

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Zabiyeva and Others v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 27 August 2009,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 35052/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Russian nationals listed below (“the applicants”), on 11 November 2003.

2.  The applicants were represented by lawyers of the Stichting Russian Justice Initiative (“SRJI”), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.

3.  On 1 September 2005 the Court decided to apply Rule 41 of the Rules of Court and to grant priority treatment to the application.

4.  On 3 September 2007 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3 of the Convention).

5.  The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicants are:

(1) Ms Tamara Zabiyeva, born in 1937;

(2) Ms Eset Kotiyeva, born in 1973;

(3) Mr Khamzat Zabiyev, born in 2000; and

(4) Mr Belan Zabiyev, born in 2002.

They live in the village of Galashki, in the Republic of Ingushetia.

7.  The first applicant is the mother of Mr Ali Zabiyev, Mr Musa Zabiyev and Mr Umar Zabiyev, who was born in 1972. Umar Zabiyev was the second applicant’s husband; they are the parents of the third and fourth applicants.

A.  Killing of Umar Zabiyev

1.  The applicants’ account

8.  On 10 June 2003 the first applicant and her sons, Ali and Umar Zabiyev, were working in a field outside the village of Galashki. At some point they noticed a helicopter flying in circles above them.

9.  At about 7 p.m. they rode home in a ZIL-130 lorry; Umar Zabiyev was driving. When they were within 4 kilometres of the village of Galashki, their vehicle came under heavy gunfire. Apparently the shots were fired from machine guns and came from the nearby forest. The first applicant was wounded in the back, neck and head. Umar Zabiyev lost control of the lorry, which crashed into a roadside tree. The Zabiyev brothers took the first applicant, unconscious, out of the vehicle. Then Ali Zabiyev ran to the village for help; Umar Zabiyev stayed with his mother. At some point the lorry exploded. Then the gunfire ceased.

10.  About forty minutes later Ali Zabiyev, accompanied by Musa Zabiyev, policemen and fellow villagers, arrived at the scene of the incident to find the first applicant lying on the ground and no trace of Umar Zabiyev. The first applicant was then transported to hospital; two bullets were extracted from her body.

11.  Having heard about Umar Zabiyev’s disappearance, the villagers started searching for him. At about 10 p.m. on 10 June 2003 two of them, Mr D. and Mr O., met in a forest a group of around thirty or forty armed men speaking unaccented Russian. The armed men forced the two villagers to the ground and questioned them. Then they contacted someone via a portable radio transmitter, ordered the villagers to lie still for another half an hour and left.

12.  In the morning of 11 June 2003 a group of Russian servicemen, under the command of an officer with the rank of major-general, arrived at the scene of the incident. The major-general suggested that the Zabiyevs had been attacked by unknown Chechen insurgents and denied any possible involvement of Russian military personnel.

13.  At 12 noon on 11 June 2003 Umar Zabiyev’s dead body, with gunshot wounds and bruises, was found around two kilometres from the scene of the incident and some twenty metres from the place where Mr D. and Mr O. had met the armed men the night before. The corpse was partly covered with soil.

2.  Information submitted by the Government

14.  At about 7.10 p.m. on 10 June 2003 unidentified persons were hiding in the forest on the left side of the road leading from the village of Dattykh at a distance of 4 kilometres from the village of Galashki. They fired from machine guns at the ZIL-130 lorry in which the first applicant, Umar Zabiyev and Ali Zabiyev were travelling. As a result of the shooting the first applicant suffered injuries to her neck and back, Ali Zabiyev received tangential soft-tissue wounds and Umar Zabiyev went missing.

15.  On 11 June 2003 the dead body of Umar Zabiyev was found buried at a distance of 1.7 kilometres from the scene of the incident. The body bore traces of numerous gunshot wounds to the head and body.

3.  NGO reports on Umar Zabiyev’s murder

16.  On 16 July 2003 Human Rights Watch released a paper entitled “Russia: Abuses Spread Beyond Chechnya. Neighboring Ingushetia Now Affected”, which described the Zabiyevs’ case as follows:

“On June 10, three Ingush civilians – sixty-five-year-old Tamara Zabieva and two of her sons, Ali and Umar Zabiev – were returning from their potato field near the village of Galashki, when their truck came under heavy machinegun fire, injuring Zabieva in the back, neck, and head. The brothers took their mother out of the car and Umar stayed with her while Ali ran to the village for help.

Local Ingush police who arrived about an hour later found Zabieva unconscious and sent her to the local hospital, but were unable to find Umar. His body, bearing clear marks of torture and gun shot wounds, was discovered the next morning in a nearby forest. The Ingush police said that evidence suggests involvement by federal servicemen, but the military procuracy has refused to take over the case.

While Galashki has in the past been the scene of clashes between Russian federal forces and Chechen rebel fighters, Human Rights Watch has no indication that any such activity took place in the area that day.”

17.  Later, Human Rights Watch gave a more detailed description of the Zabiyevs’ case in its article entitled “Spreading Despair: Russian Abuses in Ingushetia”, issued in September 2003.

B.  Investigation into the killing of Umar Zabiyev

1.  The applicants’ account

18.  In the afternoon of 11 June 2003 investigators examined the scene of the incident. They found many used cartridges and an empty machine-gun cartridge belt, used bandages, empty water bottles, canned pork and plastic bags bearing the Russian Ministry of Defence logo. The investigators took fingerprints from the bottles and tins. Then Umar Zabiyev’s dead body was transported to the morgue.

19.  At 5.20 p.m. on 11 June 2003 a forensic expert commenced a post-mortem examination of Umar Zabiyev’s body. According to the forensic report, there were numerous gunshot wounds to the body, namely three perforating wounds to the head; one penetrating, two perforating and two non-penetrating wounds to the chest; three perforating wounds to an arm; a wound to a shoulder joint and a wound to a buttock. It was also established that Umar Zabiyev’s lower jaw had been broken by a blunt hard item. The expert concluded that Umar Zabiyev’s death had been caused by the penetrating and perforating wounds to the head and chest and that the lethal shots had been fired from machine guns aimed at Umar Zabiyev while he had been either standing or lying down. The death had occurred some eighteen to twenty-four hours before the beginning of the autopsy.

20.  On 12 June 2003 Umar Zabiyev was buried. His family received 100,000 Russian roubles (RUB) from the President of Ingushetia as a burial allowance, which was a common practice at the material time.

21.  On an unspecified date the head of the local administration confirmed in writing that there had been no armed clashes between the federal troops and rebel fighters in the area around the village of Galashki between 9 and 11 July 2003.

22.  On 25 June 2003 Musa Zabiyev wrote to the Prosecutor General of Russia, the Prosecutor of Ingushetia and the military prosecutor of the United Group Alignment (UGA), complaining about the military attack on his relatives and the murder of his brother.

23.  On 14 July 2003 the prosecutor’s office of the Sunzhenskiy District of the Republic of Ingushetia (“the district prosecutor’s office”) informed Musa Zabiyev that his complaint concerning the events of 10 June 2003 would be examined within the course of the investigation in case no. 23600032.

24.  On 17 April 2004 the Ministry of the Interior of Ingushetia informed the second applicant that the investigation into the murder of Umar Zabiyev in case no. 03600032 had been commenced by the district prosecutor’s office. It noted, in particular, the following:

“As a result of the investigative measures taken it was established that the crime had been committed by the servicemen of military intelligence unit no. 194 KTG («разведрота 194 КТГ») with the direct involvement of the head of that unit, [S.P.], nicknamed ‘the Snake’ («Змей»), who is unable to leave the location of the unit in the village of Dattykh in the Sunzhenskiy District of Ingushetia as the military prosecutor’s office has charged him with another crime and instituted criminal proceedings on that account.”

25.  On 7 July 2006 a member of the Parliament of Ingushetia received a letter from the Prosecutor General’s Office stating that the investigation into Umar Zabiyev’s killing had been suspended on 19 June 2004 and resumed on 2 February 2006.

2.  Information submitted by the Government

26.  On 11 June 2003 the district prosecutor’s office instituted an investigation into the killing of Umar Zabiyev under Article 105 § 1 (murder) and Article 222 § 1 (unlawful acquisition and possession of firearms) of the Russian Criminal Code. The case file was assigned the number 23600032.

27.  On 11 June 2003 the crime scene was inspected and a post-mortem examination of Umar Zabiyev’s body was ordered.

28.  On 12 June 2003 the first applicant was granted victim status and questioned. She stated that at about 7 p.m. on 10 June 2003, while she had been travelling with her two sons in the ZIL-130 lorry, unidentified persons had opened fire. As a result she had suffered wounds to her neck and back. Ali and Umar Zabiyev had taken her out of the car and brought her into the forest. Ali had gone to the village for help, while Umar had dragged the first applicant to a hill. At some point she had lost consciousness. The first applicant had recovered her senses after the arrival of the police and the villagers of Galashki. Umar Zabiyev had not been seen anywhere around. The first applicant had not heard any voices and did not know who had shot at the car.

29.  On 12 June 2003 Ali Zabiyev was granted victim status and questioned. He stated that at 7.10 p.m. on 10 June 2003 their ZIL-130 lorry had been fired at from machine guns. The vehicle had hit a tree and stopped. Ali and Umar had taken their wounded mother out of the lorry and brought her into the forest. Umar had asked Ali to go searching for help, which Ali had done. Having returned to the scene of the incident, Ali, the police and the fellow villagers had found the first applicant, who had then been transferred to hospital. Umar Zabiyev had disappeared; on 11 June 2003 his dead body had been found.

30.  On 13 June 2003 Mr D. and Mr O. were questioned. They stated that at about 8 p.m. on 10 June 2003 Ali Zabiyev had run towards them and told them that the ZIL lorry had been fired at. They had reported the shooting to the police and gone to the scene of the incident. There they had found the first applicant unconscious; Umar Zabiyev had disappeared. While searching for Umar Zabiyev, Mr D. and Mr O. had stumbled across a group of armed men. The men had pointed their firearms at Mr D. and Mr O., verified whether they had had any weapons and checked their identity papers. Then they had questioned Mr D. and Mr O. about their reasons for being in the forest and left in the direction of the village of Dattykh. On the following day Umar Zabiyev’s dead body had been found buried some 20 or 30 metres from the place where the witnesses had met the armed men.

31.  The investigators verified Mr D.’s and Mr O.’s statements. Within 20 metres from Umar Zabiyev’s grave they found an area with eight sleeping berths and the following items: empty plastic mineral water bottles, empty plastic bags, empty tin cans marked “Boiled Buckwheat”, “Cooked Rice”, “Liver Pâté with Pork Fat” and other items bearing the stamp “Military Supply of Provisions” («Оборонпродкомплект»), a pair of worn socks, a piece of bandage with traces of blood and a portable remote-control detonator PM-4 No. 3144 1-99 («переносная подрывная машинка ПМ-4»).

32.  The items found at the scene of the incident, the ZIL-130 lorry and a bullet extracted from Umar Zabiyev’s body were subjected to forensic, ballistic, dactylographic, medical, olfactory and biological expert examinations carried out in July and August 2003.

33.  The ballistic expert examinations established that the bullet extracted from Umar Zabiyev’s dead body had been fired from a Kalashnikov machine gun of 7.62 mm calibre. 217 cartridge cases presented for examination had been parts of cartridges of 7.62 mm calibre produced in Russia according to the 1981 standards and suitable for Mosin and Dragunov sniper rifles, as well as for Kalashnikov machine guns. The cartridge cases in question had been fired from two firearms. Cartridge belts presented for examination had been additional parts for a Kalashnikov machine gun of 7.62 mm calibre.

34.  The forensic expert examination established that the ZIL-130 lorry had had 112 penetrating bullet holes that could have been fired from a firearm of 7.62 mm calibre.

35.  The medical forensic expert examination found no traces of shots fired from short range on Umar Zabiyev’s clothes.

36.  On 16 June 2003 a dactylographic expert examination of servicemen of military intelligence unit no. 194 KTG was ordered.

37.  On 1 July 2003 the district prosecutor’s office requested the military commander of the Leninskiy District of Grozny to submit a list of servicemen who had participated in search activities in the vicinity of the villages of Galashki and Dattykh between 8 and 10 June 2003 and to carry out investigative measures in respect of them.

38.  The dactylographic expert examinations established that fingerprints left on the items found at the scene of the incident were not identical to those of the servicemen who had been checked regarding their possible involvement in the crime, including S.P.

39.  The biological expert examination of saliva left on the cigarette butts found at the crime scene and the olfactory expert examination of the socks and the piece of bandage produced no significant results.

40.  The investigators requested information on the portable remote-control detonator from the UGA. On 7 June 2004 the head of engineer troops of the North Caucasus Circuit replied that portable remote-control detonators PM-4 No. 3144 issued in 1999 had not been supplied to the North Caucasus Circuit armouries and had not been sent to its military units.

41.  The medical expert examination of the first applicant established that she had sustained mildly severe bodily injuries inflicted by hand-held firearms.

42.  On an unspecified date an investigation into the infliction of bodily injuries on the first applicant was instituted under Article 112 § 1 of the Russian Criminal Code. It is unclear what number the case was assigned and whether any progress was made in the investigation.

43.  On 7 and 10 July 2003 the district prosecutor’s office sent unspecified orders to the Sunzhenskiy District Department of the Interior and to the UGA military prosecutor respectively.

44.  On 23 July 2003 the district prosecutor’s office sent an unspecified order to the Ingushetia Department of the Federal Security Service.

45.  On 8 December 2003 the district prosecutor’s office sent an unspecified order to the prosecutor of the North Caucasus Circuit.

46.  In January and February 2004 ballistic and dactylographic expert examinations were carried out.

47.  On 3 February 2004 the fingerprints of S.P. and sixteen servicemen of military intelligence unit no. 194 KTG were taken and compared with the fingerprints detected on the cans found near the scene of the incident. None of the fingerprints left on the cans corresponded to those of the servicemen in question.

48.  On an unspecified date the firearms used by the servicemen of military intelligence unit no. 194 KTG were subjected to a ballistic expert examination.

49.  On 13 February 2004 the district prosecutor’s office sent an unspecified order to the Sunzhenskiy District Department of the Interior.

50.  On 20 May 2004 the district prosecutor’s office sent an unspecified order to the UGA military prosecutor.

51.  On 19 June 2004 the investigation was suspended.

52.  According to the Government, it follows from the investigation file that on 10 June 2003 there was an armed confrontation between federal servicemen and a group of around ten insurgents in the vicinity of the village of Galashki, as a result of which two insurgents were killed and three wounded. An intelligence squad under the command of Lieutenant S.P. participated in the confrontation. In their submissions of 25 December 2007 the Government submitted that it had been impossible to either prove or refute the involvement of S.P. or other federal servicemen in the killing of Umar Zabiyev.

53.  Lieutenant-Colonel N.B. was questioned as a witness and stated that the information on the armed confrontation of the federal troops with the group of around ten insurgents, as a result of which two insurgents had been killed and three wounded, had been based on a report made by a duty officer of the UGA information centre and then issued as a press release. No other sources of that information had been found and its veracity was being checked.

54.  In their submissions of 12 May 2008 the Government stated that no reliable evidence had been obtained by that time to prove the involvement of S.P. or other federal servicemen in Umar Zabiyev’s killing.

55.  The investigation was resumed and suspended a number of times. It failed to find any evidence to support the involvement of the Russian federal military in the crime but was pending. Investigative measures were being taken to solve the murder of Umar Zabiyev.

56.  Despite specific requests by the Court the Government did not disclose any material from the investigation file in case no. 2360032. Relying on the information obtained from the Prosecutor General’s Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings.

II.  RELEVANT DOMESTIC LAW

57.  For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).

THE LAW

I.  The government’s objection regarding LOCUS STANDI

58.  The Government pointed out that the application form had been signed by three lawyers of the SRJI named in the powers of attorney issued by the applicants and two other persons who had not been officially authorised to represent the applicants. Referring to the Court’s decision in Vasila and Petre Constantin in the name of Mihai Ciobanu v. Romania (no. 52414/99, 16 December 2003), the Government concluded that there was a lack of locus standi in the present case.

59.  The Court notes that the applicants had given authority to act to the SRJI and its three lawyers. The application form was signed by five persons in total. The names of three of these persons appeared in the powers of attorney, while two other lawyers worked with the SRJI. In such circumstances the Court considers that the SRJI lawyers were duly authorised to submit an application form on the applicants’ behalf. Accordingly, the Government’s objection must be dismissed.

II.  The government’s objection regarding non-exhaustion of domestic remedies

A.  The parties’ submissions

60.  The Government contended that the complaint should be declared inadmissible for non-exhaustion of domestic remedies. They submitted that the investigation into Umar Zabiyev’s murder had not yet been completed. The Government emphasised that the first applicant had not complained either to prosecutors or to a court about the infliction of injuries on her. They further argued that it had been open to the applicants to challenge in court or before a higher prosecutor any acts or omissions of the investigating authorities. They also submitted that the applicants could have brought civil claims for damages but had failed to do so.

61.  The applicants contested that objection and stated that the remedies referred to by the Government were ineffective.

B.  The Court’s assessment

62.  The Court reiterates that the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention obliges applicants to use first the remedies which are available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain both in theory and in practice, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI, and Cennet Ayhan and Mehmet Salih Ayhan v. Turkey, no. 41964/98, § 64, 27 June 2006).

63.  It is incumbent on the respondent Government claiming non-exhaustion to indicate to the Court with sufficient clarity the remedies to which the applicants have not had recourse and to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time, that is to say that they were accessible, were capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Cennet Ayhan and Mehmet Salih Ayhan, cited above, § 65).

64.   The Court notes that the Russian legal system provides, in principle, two avenues of recourse for the victims of illegal and criminal acts attributable to the State or its agents, namely civil and criminal remedies.

65.  As regards a civil action to obtain redress for damage sustained through the alleged illegal acts or unlawful conduct of State agents, the Court has already found in a number of similar cases that this procedure alone cannot be regarded as an effective remedy in the context of claims brought under Article 2 of the Convention. A civil court is unable to pursue any independent investigation and is incapable, without the benefit of the conclusions of a criminal investigation, of making any meaningful findings regarding the identity of the perpetrators of fatal assaults or disappearances, still less of establishing their responsibility (see Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 119-21, 24 February 2005, and Estamirov and Others v. Russia, no. 60272/00, § 77, 12 October 2006). In the light of the above, the Court confirms that the applicants were not obliged to pursue civil remedies.

66.  As regards criminal-law remedies provided for by the Russian legal system, the Court observes that Ali Zabiyev reported the armed attack on his family to the local police immediately after it had taken place. An investigation into the killing of Umar Zabiyev has been pending since 11 June 2003. An investigation into the infliction on the first applicant of mildly severe bodily injuries was opened on an unspecified date. The applicants and the Government disputed the effectiveness of the investigations in question.

67.  The Court considers that this part of the Government’s objection raises issues concerning the effectiveness of the investigations into the killing of Umar Zabiyev and the infliction of injuries on the second applicant which are closely linked to the merits of the applicants’ complaints. Thus, it decides to join this objection to the merits of the case and considers that the issue falls to be examined below.

III.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

68.  In their initial application of 18 November 2004 the applicants complained that Umar Zabiyev had been killed by Russian servicemen and that the domestic authorities had failed to carry out an effective investigation of the matter. They relied on Article 2 of the Convention, which reads:

“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

A.  The parties’ submissions

1.  The Government

69.  The Government denied the involvement of State servicemen in Umar Zabiyev’s killing. They emphasised that the information on the armed clash in the vicinity of Galashki had not been confirmed. In any event, the information as to the number of insurgents did not correspond to the number of sleeping berths found in the forest or to the number of armed men seen by the villagers. The items bearing the Ministry of the Defence logo could have been stolen from the federal troops by insurgents. Groups of Ukrainian and ethnic Russian mercenaries who had no religious reasons to abstain from eating pork had fought the federal troops in the Chechen Republic. Even if the items in question had been left by Russian servicemen, this could have been done before 10 June 2003.

70.  The Government claimed that the letter by the Ministry of the Interior of Ingushetia of 17 April 2004 had not proved the participation of military intelligence unit no. 194 KTG in the events but had merely referred to a hypothesis examined in the course of the investigation. The Government emphasised that S.P.’s fingerprints had not been found on the items discovered near the scene of the incident. The allegation that a military convoy had been passing by Galashki on 10 June 2003 had not been confirmed.

71.  In the Government’s submission, the investigation into Umar Zabiyev’s murder had been effective. It had been carried out by a competent prosecutor’s office. The applicants had been allowed to study certain documents from the investigation file but pursuant to Russian procedural laws could not have access to the entire file prior to the completion of the investigation.

72.  The first applicant did not raise the issue of an alleged violation of her right to life in the initial application form.

2.  The applicants

73.  The applicants maintained that it was beyond reasonable doubt that the men who had shot at the Zabiyevs’ lorry and killed Umar Zabiyev had been State agents. Referring to the letter of 17 April 2004 from the Ministry of the Interior of Ingushetia, they claimed that the domestic investigation had proved military involvement in the crime. Witnesses had seen military vehicles and servicemen in the vicinity of the crime scene. Items with military logos had been found near Umar Zabiyev’s dead body; moreover, among those items there had been empty tins of pork liver pâté whereas Chechen insurgents, being Muslims, could not eat pork.

74.  The applicants also complained that the investigation into Umar Zabiyev’s murder had been ineffective. There had been lengthy periods of inactivity on the part of the investigators and the investigation had not established whether there had been an armed clash between the federal troops and insurgents in the vicinity of Galashki on 10 June 2003 or not.

75.  In the applicants’ observations of 7 April 2008 on the admissibility and merits of the case the first applicant complained for the first time, relying on Article 2 of the Convention, that she had been the victim of an unlawful attempt on her life by State servicemen, which she had survived merely by chance, and that the domestic authorities had failed to investigate the matter. The applicants further maintained their complaints regarding the alleged violation of Umar Zabiyev’s right to life.

B.  The Court’s assessment

1.  Admissibility

(a)  Alleged violation of the right to life of the first applicant

76.  The Court first reiterates that Article 35 § 1 of the Convention requires that it may only deal with a matter where it has been introduced within six months from the date of the final decision. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on, or prejudice to, the applicant (see Dennis and Others v. the United Kingdom (dec.), no. 76573/01, 2 July 2002). It is not open to the Court to set aside the application of the six-month rule solely because a Government have not made a preliminary objection based on it (see Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I).

77.  The Court further points out that in the initial application form the applicants’ representatives described the circumstances of the infliction of the wounds on the first applicant on 10 June 2003 and made a complaint on the subject under Article 3 of the Convention. The Court will examine the alleged ill-treatment of the first applicant from the standpoint of that Convention provision in due course (see paragraphs 123–126 below).

78.  It is noteworthy that the first applicant produced no explanation of the fact that she had not raised the issue of an alleged violation of her right to life before the Court prior to 7 April 2008. At the same time the Court observes that as early as 18 November 2004, when the application form was submitted, the applicants themselves emphasised that, in their view, no effective remedies for the alleged violations existed at domestic level.

79.  The Court notes that it has no reason to assume that the first applicant or her representatives were in any manner precluded from bringing to its attention the relevant complaint with a reference to Article 2 of the Convention at an earlier stage of the proceedings. In such circumstances it concludes that the first applicant failed to comply with the six-month limit as regards the alleged violation of her right to life.

80.  It follows that the complaint under Article 2 of the Convention in respect of the first applicant was lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

(b)  Alleged violation of the right to life of Umar Zabiyev

81.  The Court considers, in the light of the parties’ submissions, that this part of the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. Further, the Court has already found that the Government’s objection concerning the alleged non-exhaustion of criminal domestic remedies should be joined to the merits of the complaint (see paragraph 66 above). The complaint concerning the alleged violation of the right to life in respect of Umar Zabiyev must therefore be declared admissible.

2.  Merits

(a)  Establishment of the facts

82.  The Court reiterates that Article 2, which safeguards the right to life and sets out the circumstances where deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, from which in peacetime no derogation is permitted under Article 15. The situations where deprivation of life may be justified are exhaustive and must be narrowly interpreted. The use of force which may result in the deprivation of life must be no more than “absolutely necessary” for the achievement of one of the purposes set out in Article 2 § 2 (a), (b) and (c). This term indicates that a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8 to 11 of the Convention. Consequently, the force used must be strictly proportionate to the achievement of the permitted aims. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, particularly where deliberate lethal force is used, taking into consideration not only the actions of State agents who actually administer the force but also all the surrounding circumstances including such matters as the planning and control of the actions under examination (see McCann and Others v. the United Kingdom, 27 September 1995, §§ 146-50, Series A no. 324, and Andronicou and Constantinou v. Cyprus, 9 October 1997, § 171, Reports 1997-V).

83.  The Court observes that it has developed a number of general principles relating to the establishment of facts in dispute, in particular when faced with allegations of violations of Article 2 of the Convention (for a summary of these, see Bazorkina v. Russia, no. 69481/01, §§ 103-09, 27 July 2006). The Court also notes that the conduct of the parties when evidence is being obtained has to be taken into account (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25).

84.  The applicants maintained that it was beyond reasonable doubt that the ZIL-130 lorry in which the first applicant and her two sons had been travelling had been fired at by Russian servicemen and that the latter had killed Umar Zabiyev. They emphasised that the domestic authorities had established military involvement in the armed attack on the ZIL-130 lorry.

85.  The Government insisted that the death of the applicants’ relative was not imputable to the State.

86.  The Court notes that, despite its requests for a copy of the entire file on the investigation into the murder of Umar Zabiyev, the Government refused to produce the documents from the case file on the ground that they were precluded from providing them by Article 161 of the Code of Criminal Procedure. The Court observes that in previous cases it has found this explanation insufficient to justify the withholding of key information requested by the Court (see Imakayeva v. Russia, no. 7615/02, § 123, ECHR 2006-XIII).

87.  In view of the foregoing and bearing in mind the principles referred to above, the Court finds that it can draw inferences from the Government’s conduct in this respect.

88.  The Court first observes that the Government referred to certain documents from the investigation file that had contained information about an armed confrontation on 10 June 2003 between federal servicemen and insurgents near Galashki (see paragraph 52 above). However, they claimed that the information in question had remained unconfirmed (see paragraph 53 above). The Court is perplexed by the ambiguity of the Government’s assertions. In any event, it does not deem it necessary to establish whether there were any clashes between the Russian military and insurgents on the day of the attack on the Zabiyevs’ lorry because it is not relevant for the establishment of the facts in the present case. The Court will need, however, to determine whether the persons who attacked the Zabiyevs belonged to State agencies.

89.  The Court considers in this connection that the applicants have presented a coherent and convincing picture of the events in question. Their account of the events was supported by the witnesses and the domestic investigation.

90.  In particular, Mr D. and Mr O. informed both the applicants and the investigators that they had seen a large group of armed men not far from the place where the Zabiyevs’ lorry had come under fire and that those men had checked their identity papers (see paragraphs 11 and 30 above). In the Court’s view, the fact that the armed men wearing camouflage uniforms carried out an identity check supports the applicants’ allegation that those were State servicemen.

91.  Furthermore, the Ministry of the Interior of Ingushetia unequivocally stated in its letter of 17 April 2004 that it had been established in the course of the investigation that military unit no. 194 KTG was responsible for the attack on the Zabiyevs’ lorry. The Court is not persuaded by the Government’s assertion that the letter in question merely referred to a hypothesis, because it is clear from the wording of the letter that in the course of the investigation the involvement of certain servicemen in the crime had been established, not merely looked into (see paragraph 24 above).

92.  Moreover, a number of items bearing the Russian Ministry of Defence’s logo were found in the vicinity of the site of the attack on the lorry and Umar Zabiyev’s grave (see paragraph 31 above). The Court takes note of the Government’s assertions that those items could have been stolen from Russian military bases by insurgents or left by federal servicemen prior to 10 June 2003. Nonetheless, it would appear a simpler, and more probable explanation that the items in question were left by the armed men seen by Mr D. and Mr O. in the evening of 10 June 2003. The Government’s mere allegation that the fingerprints discovered on the items did not correspond to those of S.P. does not in itself suffice to rule out the possibility of military involvement in the events.

93.  The Court also takes note of the Government’s argument that the number of berths found in the forest did not correspond to the number of armed men who had checked the identity papers of Mr D. and Mr O., but it is not convinced that this argument refutes the applicants’ allegations.

94.  Given that Mr D. and Mr O. encountered the armed men who checked their identity papers only three hours after the ZIL-130 lorry had been attacked, the Court is satisfied that those who fired at the vehicle belonged to the Russian military.

95.  The Court further points out that there were no witnesses who could say what had happened to Umar Zabiyev after his brother Ali had run to the village for help at about 7 p.m. on 10 June 2003. At the same time it follows from the post-mortem report that Umar Zabiyev’s death occurred between 5.20 p.m. and 11.20 p.m. on that day (see paragraph 19 above). Accordingly, Umar Zabiyev died of gunshot wounds between 7 p.m. and 11.20 p.m. on 10 June 2003. Moreover, according to ballistic expert examinations, the bullet extracted from Umar Zabiyev’s body and bullets that left holes on the ZIL-130 lorry were fired from weapons of the same calibre (see paragraphs 33 and 34 above).

96.  The Court doubts that more than one group of armed men in camouflage uniforms could have been present at the same time in the same area and thus considers that the applicants have made a prima facie case that Umar Zabiyev was killed by the same persons who had attacked the ZIL-130 lorry.

97.  The Court observes that where the applicants make out a prima facie case and the Court is prevented from reaching factual conclusions owing to a lack of documents, it is for the Government to show conclusively why the documents in question cannot serve to corroborate the allegations made by the applicants, or to provide a satisfactory and convincing explanation of how the events in question occurred. The burden of proof is thus shifted to the Government and if they fail in their arguments, issues will arise under Article 2 and/or Article 3 (see Toğcu v. Turkey, no. 27601/95, § 95, 31 May 2005, and Akkum and Others v. Turkey, no. 21894/93, § 211, ECHR 2005-II).

98.  The Court points out in this connection that the Government’s assertion that the investigation did not find any evidence pointing to the involvement of the special forces in the attack on the Zabiyevs’ lorry that led to the first applicant’s injuries and Umar Zabiyev’s killing is insufficient to discharge them from the above-mentioned burden of proof. Drawing inferences from the Government’s failure to submit the documents which were in their exclusive possession or to provide another plausible explanation of the events in question, the Court considers it established that the first applicant was wounded and Umar Zabiyev was killed by State servicemen on 10 June 2003.

(b)  The State’s compliance with Article 2

99.  The Court reiterates that, in the light of the importance of the protection afforded by Article 2, it must subject deprivation of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances (see McCann and Others, cited above, § 147).

100.  The Court has already found it established that Umar Zabiyev was killed by State servicemen (see paragraph 98 above). Since the authorities did not rely on any grounds to justify the use of lethal force by their agents or otherwise account for the killing, the Court considers that liability for the death is attributable to the respondent Government.

101.  Accordingly, the Court finds that there has been a violation of Article 2 of the Convention in respect of Umar Zabiyev.

(c)  Alleged inadequacy of the investigation

102.  The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see Kaya v. Turkey, 19 February 1998, § 86, Reports 1998-I). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family and carried out with reasonable promptness and expedition. It should also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances or otherwise unlawful, and should afford a sufficient element of public scrutiny of the investigation or its results (see Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 105-09, ECHR 2001-III, and Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).

103.  In the present case, the murder of Umar Zabiyev was investigated. The Court must assess whether that investigation met the requirements of Article 2 of the Convention.

104.  The Court notes at the outset that the information on the course of the investigation at its disposal is extremely sparse because the documents from the case file remain undisclosed by the Government.

105.  The Government vaguely referred to investigative steps taken to solve the murder of Umar Zabiyev. For instance, they stated that the investigators had sent a number of orders to various State agencies (see paragraphs 43–45, 49 and 50 above). However, they did not clarify the nature of those orders and did not indicate what aim the district prosecutor’s office had pursued when sending them. Hence, it remains unclear whether the orders in question could have contributed in any manner to the overall effectiveness of the investigation.

106.  The Court further points out that such a basic investigative step as a dactylographic expert examination of the servicemen of military unit no. 194 KTG was not carried out promptly. It follows from the Government’s submissions that it was ordered on 16 June 2003 – that is, five days after the discovery of Umar Zabiyev’s dead body (see paragraph 36 above). However, the fingerprints of those servicemen were taken only on 3 February 2004 (see paragraph 47 above). The Government produced no explanation of the fact that a vital investigative measure capable of identifying persons involved in a killing had been delayed by seven months.

107.  Furthermore, nothing in the Government’s submissions warrants the conclusion that the servicemen of military unit no. 194 KTG have ever been questioned, although it was crucially important for the investigation to clarify whether they had indeed participated in the armed clash with insurgents referred to by the Government (see paragraph 52 above).

108.  Accordingly, the Court considers that the domestic investigative authorities demonstrably failed to act of their own motion and breached their obligation to exercise exemplary diligence and promptness in dealing with such serious crimes as murder and kidnapping (see Öneryildiz v. Turkey [GC], no. 48939/99, § 94, ECHR 2004-XII).

109.  The Court also notes that the applicants were not promptly informed of significant developments in the investigation and considers therefore that the investigators failed to ensure that the investigation received the required level of public scrutiny, or to safeguard the interests of the next of kin in the proceedings (see Oğur v. Turkey [GC], no. 21594/93, § 92, ECHR 1999-III).

110.  Lastly, the Court notes that the investigation into the murder of Umar Zabiyev was repeatedly suspended and then resumed, which led to lengthy periods of inactivity on the part of the investigators. For instance, no proceedings whatsoever were pending between 19 June 2004 and 2 February 2006, that is, for one year and seven months (see paragraph 25 above). It also appears that no meaningful investigative measures have been taken since 19 June 2004. Such handling of the investigation could not but have had a negative impact on the prospects of identifying the perpetrators.

111.  Having regard to the limb of the Government’s objection that was joined to the merits of the complaint concerning the alleged violation of Umar Zabiyev’s right to life, in so far as it concerns the fact that the domestic investigation into his murder is still pending, the Court notes that the investigation in case no. 23600032, having been repeatedly suspended and resumed and plagued by inexplicable delays, has been ongoing for almost six years and has produced no tangible results. Accordingly, the Court finds that the remedy relied on by the Government was ineffective in the circumstances and rejects their objection in this part.

112.  The Government also mentioned that the applicants had the opportunity to apply for judicial review of the decisions of the investigating authorities in the context of exhaustion of domestic remedies and to complain to higher prosecutors. The Court observes that, owing to the time that had elapsed since the events complained of, certain investigative steps that ought to have been carried out much earlier could no longer be usefully conducted. The Court finds therefore that it is highly doubtful that the remedies relied on by the Government would have had any prospects of success and considers that they were ineffective in the circumstances of the case. It thus rejects the Government’s objection in this part as well.

113.  In the light of the foregoing, the Court finds that the domestic authorities failed to carry out an effective criminal investigation into the killing of Umar Zabiyev, in breach of Article 2 in its procedural aspect.

IV.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

114.  The applicants complained that as a result of their relative’s killing and the State’s failure to investigate it properly they had endured profound mental suffering. Furthermore, referring to the forensic expert examination report, the applicants alleged that Umar Zabiyev had sustained an injury to his lower jaw prior to his death and that no investigation had been carried out in respect of his ill-treatment. Lastly, the first applicant complained that on 10 June 2003 she had been seriously wounded by State agents and that no effective investigation had been conducted into the incident. They relied on Article 3 of the Convention, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  The parties’ submissions

115.  The Government disagreed with these allegations. They stated that the first applicant and Umar Zabiyev had not been subjected to ill-treatment by State agents and that the allegations of the ill-treatment had been investigated. They emphasised it was impossible to find a violation of Article 3 of the Convention in respect of Umar Zabiyev given that those responsible for his injuries mentioned in the forensic report of 11 June 2003 had not been identified. They further asserted that the first applicant had sustained mildly severe bodily injuries and that an investigation into their infliction had been opened, but submitted no information on progress in that investigation. The first applicant had also been granted victim status in case no. 23600032 concerning her son’s killing.

116.  The applicants maintained their submissions regarding the alleged ill-treatment of Umar Zabiyev, the alleged ill-treatment of the first applicant and the lack of investigation into it and the applicants’ mental suffering. In their observations of 7 April 2008 on the admissibility and merits of the case they stated that they no longer wished to have their complaint concerning the lack of effective investigation into Umar Zabiyev’s ill-treatment examined.

B.  The Court’s assessment

1.  Admissibility

117.  The Court notes that the complaints under Article 3 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds and must therefore be declared admissible.

2.  Merits

(a)  The complaint concerning Umar Zabiyev

118.  The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, cited above, § 161 in fine).

119.  The Court has found it established that Umar Zabiyev died on 10 June 2003 as a result of the use of force by State servicemen (see paragraph 98 above).

120.  The Court points out that neither the first applicant nor Ali Zabiyev mentioned that Umar Zabiyev had had any injuries when he had been seen alive for the last time. It further notes that the post-mortem expert examination report of 11 June 2003 confirmed the presence of numerous wounds and injuries to Umar Zabiyev’s body, including a broken lower jaw. The Government provided no plausible explanation as to the origin of those injuries, which must therefore be considered attributable to a form of ill-treatment for which the authorities were responsible. The Court considers that this treatment reached the threshold of “inhuman and degrading”.

121.  Therefore, there has been a violation of Article 3 of the Convention in respect of Umar Zabiyev on account of the ill-treatment inflicted by State servicemen prior to his death.

122.  Considering that the applicants no longer wished to have an examination of their complaint in respect of the alleged deficiencies in the investigation into the infliction of injuries on Umar Zabiyev, the Court does not deem it necessary to make a separate finding under Article 3 of the Convention.

(b)  The complaint concerning the first applicant’s ill-treatment

(i)  Compliance with Article 3

123.  The Court observes at the outset that the Government admitted that the first applicant had suffered wounds to her neck and chest in the course of the armed attack of 10 June 2003 (see paragraph 14 above) and claimed that those wounds amounted to mildly severe bodily injuries. Moreover, they stated that the investigation into the infliction of the injuries was still pending.

124.  The Court reiterates that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim (see Tekin v. Turkey, 9 June 1998, § 52, Reports 1998-IV).

125.  The Court has found it established that the attack on the ZIL-130 lorry was carried out by Russian servicemen (see paragraph 98 above). Therefore, the first applicant sustained serious injuries as the result of the use of firearms by State agents. The Court considers that this treatment reached the threshold of “inhuman and degrading”.

126.  Therefore, there has been a violation of Article 3 of the Convention in respect of the first applicant on account of her ill-treatment by the servicemen.

(ii)  Effectiveness of the investigation

127.  The Court notes that the first applicant raised the complaint concerning her ill-treatment by State servicemen before the investigating authorities when describing the events of 10 June 2003. According to the Government, an investigation into the incident was opened. The Court must now assess whether that investigation met the requirements of Article 3 of the Convention.

128.  The Court notes at the outset that it remains unknown on what date and by which body the investigation was instituted. Nor is it clear whether it produced any tangible results. None of the documents from the investigation were disclosed by the Government. Moreover, they did not communicate to the Court the number which had been assigned to the investigation.

129.  Owing to the lack of information at its disposal, the Court is not in a position to establish whether any progress has been achieved in the investigation into the infliction of injuries on the first applicant. Nonetheless, it is clear that the perpetrators have not yet been identified. Drawing inferences from the Government’s refusal to provide any material from the case file or to submit at the very least a summary outline of the investigation, the Court finds that the domestic investigating authorities have failed to take requisite measures to solve the crime.

130.  Having regard to the limb of the Government’s objection that was joined to the merits of the complaint concerning the first applicant’s ill-treatment, in so far as it concerns the fact that the domestic investigation into it is still pending, the Court notes that nothing in the material submitted by the Government warrants the conclusion that the investigation has produced any results so far. Accordingly, the Court finds that the remedy relied on by the Government was ineffective and rejects their objection in this part.

131.  The Government also mentioned in the context of exhaustion of domestic remedies that the first applicant had the opportunity to apply for judicial review of the decisions of the investigating authorities or to complain to higher prosecutors. The Court observes that the first applicant was not even informed of the fact that an investigation into the infliction of injuries on her had been opened. In such circumstances it finds that these remedies referred to by the Government would not have had any prospects of success and considers that they were ineffective in the circumstances of the case. It thus rejects the Government’s objection in this part as well.

132.  In the light of the foregoing the Court concludes that the Government have failed to conduct an effective investigation into the ill-treatment of Umar Zabiyev’s mother. Accordingly, there has been a violation of Article 3 of the Convention in its procedural aspect in respect of the first applicant.

(c)  The complaint concerning the applicants’ mental suffering

133.  The Court notes that while a family member of a “disappeared person” can claim to be a victim of treatment contrary to Article 3 (see Kurt v. Turkey, 25 May 1998, §§ 130-34, Reports 1998-III), the same principle would not usually apply to situations where the person taken into custody has later been found dead (see Tanlı v. Turkey, no. 26129/95, § 159, ECHR 2001-III). However, if a period of initial disappearance is long it may in certain circumstances give rise to a separate issue under Article 3 (see Gongadze v. Ukraine, no. 34056/02, §§ 184-86, ECHR 2005-XI).

134.  The Court observes that the applicants’ relative went missing under suspicious circumstances after 7 p.m. on 10 June 2003. His remains were found at 12 noon on 11 June 2003, that is, some nineteen hours later. In the Court’s opinion, the period during which the applicants suffered uncertainty, anguish and distress characteristic of the specific phenomenon of disappearances was not sufficiently long to give rise to an issue under Article 3 of the Convention (see, by contrast, Luluyev and Others v. Russia, no. 69480/01, § 115, ECHR 2006-XIII, and Kukayev v. Russia, no. 29361/02, § 107, 15 November 2007).

135.  In view of the above, the Court finds that there has been no breach of Article 3 of the Convention in respect of the applicants.

V.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

136.  The applicants complained that they had been deprived of effective remedies in respect of the alleged violations of Articles 2 and 3, contrary to Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

A.  The parties’ submissions

137.  The Government contended that the applicants had had effective remedies at their disposal as required by Article 13 of the Convention and that the authorities had not prevented them from using them.

138.  The applicants reiterated the complaint.

B.  The Court’s assessment

1.  Admissibility

139.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

140.  The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. According to the Court’s settled case-law, the effect of Article 13 of the Convention is to require the provision of a remedy allowing the competent domestic authority both to deal with the substance of a relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they comply with their obligations under this provision. However, such a remedy is only required in respect of grievances which can be regarded as “arguable” in terms of the Convention (see Halford v. the United Kingdom, 25 June 1997, § 64, Reports 1997-III).

141.  As regards the alleged lack of effective remedies in respect of the complaints under Articles 2 and 3 concerning Umar Zabiyev, as well as the first applicant’s complaint of ill-treatment under Article 3, the Court emphasises that Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life and infliction of treatment contrary to Article 3, including effective access for the complainant to an investigation procedure leading to the identification and punishment of those responsible (see Anguelova v. Bulgaria, no. 38361/97, §§ 161-62, ECHR 2002-IV, and Süheyla Aydın v. Turkey, no. 25660/94, § 208, 24 May 2005). The Court further reiterates that the requirements of Article 13 are broader than a Contracting State’s obligation under Article 2 to conduct an effective investigation (see Khashiyev and Akayeva, cited above, § 183).

142.  It follows that in circumstances where, as here, a violent death and the infliction of bodily injuries were not investigated effectively and the effectiveness of any other remedy that may have existed, including civil remedies, was consequently undermined, the State has failed in its obligation under Article 13 of the Convention.

143.  Consequently, there has been a violation of Article 13 in conjunction with Articles 2 and 3 of the Convention in respect of Umar Zabiyev, and in conjunction with Article 3 of the Convention in respect of the first applicant.

144.  The Court notes that, despite its above finding that there has been no violation of Article 3 on account of the applicants’ mental suffering, this complaint is “arguable” for the purposes of Article 13 of the Convention. Nevertheless the Court has already found a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention, inter alia, on account of the authorities’ attitude towards the applicants. In such circumstances the Court considers that no separate issue arises under Article 13 in respect of the alleged violation of Article 3 of the Convention on account of the applicants’ mental suffering.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

145.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Pecuniary damage

146.  The second, third and fourth applicants claimed damages in respect of the lost wages of their husband and father, who would have supported them financially.  They submitted that prior to his death Umar Zabiyev had worked as a security guard in a private company with annual income of 31,836.48 Russian roubles (RUB) (861 euros (EUR)). They provided a certificate from Umar Zabiyev’s former employer confirming the amount of the income and submitted their calculations of the sums they could have expected to receive from Umar Zabiyev. The second applicant claimed RUB 271,419.36 (EUR 7,340), the third applicant claimed RUB 96,981.98 (EUR 2,622) and the fourth applicant claimed RUB 107,440.48 (EUR 2,905) in respect of pecuniary damage.

147.  The first applicant submitted that she had spent a considerable amount of money on medical treatment after she had been wounded on 10 June 2003. She had not kept any receipts to confirm the expenses in question. She also stated that she would need constant paid assistance from third persons in the future owing to her disability sustained as a result of the wounds. The first applicant claimed EUR 5,000 in respect of pecuniary damage.

148.  The Government noted that the applicants could have claimed a pension for the loss of a breadwinner at national level.

149.  The Court reiterates that there must be a clear causal connection between the damage claimed by the applicants and the violation of the Convention. Furthermore, under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, “failing which the Chamber may reject the claim in whole or in part”.

150.  The Court reiterates that an award for pecuniary damage may be made in respect of loss of earnings and considers that there is a direct causal link between the violation of Article 2 in respect of Umar Zabiyev and the loss by his wife and children of the financial support which he could have provided. It therefore awards in respect of pecuniary damage EUR 7,340 to the second applicant, EUR 2,622 to the third applicant and EUR 2,905 to the fourth applicant, plus any tax that may be chargeable thereon.

151.  The Court observes at the same time that the first applicant failed to substantiate her claims in respect of pecuniary damage as regards past and future medical costs and thus makes no award in this respect.

B.  Non-pecuniary damage

152.  The first applicant claimed EUR 60,000 in respect of non-pecuniary damage for the suffering she had endured as a result of the armed attack on her and her son’s death, as well as the indifference shown by the authorities towards her. The second applicant claimed EUR 40,000, while the third and fourth applicants claimed EUR 30,000 each in respect of non-pecuniary damage for the suffering caused by the loss of their husband and father.

153.  The Government found the amounts claimed exaggerated.

154.  The Court has found violations of Articles 2, 3 and 13 of the Convention in respect of the applicants’ late relative, as well as a violation of Article 3 in respect of the first applicant. The Court thus accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the findings of violations. It finds it appropriate to award in respect of non-pecuniary damage EUR 15,000 to the first applicant and EUR 30,000 to the second, third and fourth applicants jointly, plus any tax that may be chargeable thereon.

C.  Costs and expenses

155.  The applicants were represented by the SRJI. They submitted an itemised schedule of costs and expenses that included research at a rate of EUR 50 per hour and the drafting of legal documents submitted to the Court and the domestic authorities at a rate of EUR 50 per hour for SRJI lawyers and EUR 150 per hour for SRJI senior staff. They also claimed translation fees, confirmed by invoices, and administrative expenses, which were not supported by any evidence. The aggregate claim in respect of costs and expenses relating to the applicants’ legal representation amounted to EUR 7,127.76.

156. The Government submitted that the applicants’ claims for just satisfaction had been signed by five lawyers, although two of them had not been mentioned in the powers of attorney issued by the applicants. They also doubted the reasonableness of the postal costs.

157.  The Court points out that the applicants had given authority to act to the SRJI and its three lawyers. The applicants’ claims for just satisfaction were signed by five persons in total. The names of three of them appeared in the powers of attorney, while the other two lawyers worked with the SRJI. In such circumstances the Court sees no reason to doubt that the five lawyers mentioned in the applicants’ claims for costs and expenses took part in the preparation of the applicants’ observations. It also sees no reason to conclude that the applicants were not entitled to send their submissions to the Court via courier service.

158.  The Court has to establish, first, whether the costs and expenses indicated by the applicants’ relatives were actually incurred and, second, whether they were necessary (see McCann and Others, cited above, § 220).

159.  Having regard to the details of the information supplied, the Court is satisfied that these rates are reasonable and reflect the expenses actually incurred by the applicants’ representatives.

160.  As to the necessity of the expenses, the Court notes that this case was rather complex and required a certain amount of research and preparation. It notes at the same time that, owing to the application of the joint examination procedure (Article 29 § 3) in the present case, the applicants’ representatives submitted their observations on admissibility and merits in one set of documents. Furthermore, the case involved little documentary evidence, in view of the Government’s refusal to submit the case file. The Court thus doubts that the legal drafting was necessarily time-consuming to the extent claimed by the representatives.

161.  Having regard to the details of the claims submitted by the applicants, the Court finds it appropriate to award them EUR 4,500, together with any value-added tax that may be chargeable to the applicants, the award to be paid into the representatives’ bank account in the Netherlands, as identified by the applicants.

D.  Default interest

162.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Dismisses the Government’s objection as to the alleged lack of locus standi;

2.  Decides to join to the merits the Government’s objection as to non-exhaustion of criminal domestic remedies and rejects it;

3.  Declares the complaints under Article 2 of the Convention in respect of Umar Zabiyev, as well as the complaints under Articles 3 and 13 of the Convention, admissible and the remainder of the application inadmissible;

4.  Holds that there has been a violation of Article 2 of the Convention in respect of Umar Zabiyev;

5.  Holds that there has been a violation of Article 2 of the Convention in respect of the failure to conduct an effective investigation into the circumstances of Umar Zabiyev’s death;

6.  Holds that there has been a violation of Article 3 of the Convention in respect of Umar Zabiyev on account of his ill-treatment by State servicemen;

7.  Holds that no separate finding is necessary under Article 3 of the Convention in respect of the alleged deficiencies in the investigation into the ill-treatment of Umar Zabiyev;

8.  Holds that there has been a violation of Article 3 of the Convention in respect of the first applicant on account of her ill-treatment by State servicemen;

9.  Holds that there has been a violation of Article 3 of the Convention in respect of the failure to conduct an effective investigation into the ill-treatment of the first applicant;

10.  Holds that there has been no violation of Article 3 of the Convention in respect of the applicants on account of their mental suffering;

11.  Holds that there has been a violation of Article 13 of the Convention in respect of the alleged violations of Articles 2 and 3 of the Convention concerning Umar Zabiyev and of Article 3 of the Convention concerning the ill-treatment of the first applicant;

12.  Holds that no separate issue arises under Article 13 in respect of the alleged violation of Article 3 of the Convention on account of the applicants’ mental suffering;

13.  Holds

(a)  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 7,340 (seven thousand three hundred and forty euros) to the second applicant, EUR 2,622 (two thousand six hundred and twenty-two euros) to the third applicant and EUR 2,905 (two thousand nine hundred and five euros) to the fourth applicant, in respect of pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on these amounts;

(ii)  EUR 15,000 (fifteen thousand euros) to the first applicant and EUR 30,000 (thirty thousand euros) to the second, third and fourth applicants jointly, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on these amounts;

(iii)  EUR 4,500 (four thousand five hundred euros), in respect of costs and expenses, to be paid into the representatives’ bank account in the Netherlands, plus any tax that may be chargeable to the applicants;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

14.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 17 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President